UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6176
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARVIN SUNTATE MOBLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:09-cr-00189-RJC-DCK-3; 3:13-cv-00571-
RJC)
Submitted: February 24, 2017 Decided: March 2, 2017
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated in part and remanded with instructions; dismissed in
part by unpublished per curiam opinion.
Marvin Suntate Mobley, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marvin Suntate Mobley, a federal prisoner, filed a
28 U.S.C. § 2255 (2012) motion, contending, among other claims,
that trial counsel rendered ineffective assistance in various
ways prior to his jury trial. Mobley has noted an appeal from
the district court’s order denying relief on his § 2255 motion.
On November 4, 2016, we granted Mobley a certificate of
appealability as to the following issues: (1) whether defense
counsel rendered ineffective assistance in advising Mobley that,
if he went to trial and was convicted, a mandatory life sentence
could not be imposed because his 1997 South Carolina state
conviction under the Youthful Offender Act could not be used to
support an enhanced sentence; and (2) whether defense counsel
rendered ineffective assistance in failing to explain to Mobley
prior to trial that the Government could use evidence in the
Fed. R. Evid. 404(b) notice against him at trial. We also
denied a certificate of appealability as to all remaining issues
and directed the Government to file a response addressing the
issues upon which the certificate of appealability was granted.
In response, the Government filed a motion to remand in
which it requests that this court remand for an evidentiary
hearing as to the two issues upon which the certificate of
appealability was granted. Mobley joins in the Government’s
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motion to remand. He also has filed a motion for leave to
supplement and a supplement to his § 2255 motion.
In § 2255 proceedings, “[u]nless the motion and the files
and records of the case conclusively show that the prisoner is
entitled to no relief, the court shall . . . grant a prompt
hearing thereon, determine the issues and make findings of fact
and conclusions of law with respect thereto.” 28 U.S.C.
§ 2255(b). An evidentiary hearing in open court is required
when a movant presents a colorable Sixth Amendment claim showing
disputed facts beyond the record or when a credibility
determination is necessary to resolve the issue. See United
States v. Witherspoon, 231 F.3d 923, 925–27 (4th Cir. 2000);
see also Raines v. United States, 423 F.2d 526, 530 (4th Cir.
1970). This court reviews a district court’s refusal to conduct
an evidentiary hearing for an abuse of discretion. Conaway v.
Polk, 453 F.3d 567, 582 (4th Cir. 2006).
Our review of the record — including the affidavits
proffered by Mobley and by defense counsel — and the parties’
submissions on appeal convinces us that the district court
abused its discretion in denying relief on Mobley’s ineffective
assistance claims that were the subject of the November 4 order
without holding an evidentiary hearing. Accordingly, we vacate
in part the district court’s denial of relief on Mobley’s § 2255
motion, grant the Government’s motion to remand, and remand with
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instructions to grant Mobley an evidentiary hearing on his
claims that trial counsel rendered ineffective assistance in
advising Mobley that, if he went to trial and was convicted, a
mandatory life sentence could not be imposed because his 1997
South Carolina state conviction under the Youthful Offender Act
could not be used to support an enhanced sentence and failing to
explain to Mobley prior to trial that the Government could use
evidence in the Rule 404(b) notice against him at trial.
Affording Mobley’s motion for leave to supplement and
supplement liberal construction in light of his pro se status,
see In re Under Seal, 749 F.3d 276, 290 (4th Cir. 2014), we
construe the motion and supplement as a motion to expand the
certificate of appealability granted by this court.
A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2012). When the district court denies
relief on the merits, a prisoner satisfies this standard by
demonstrating that reasonable jurists would find that the
district court’s assessment of the constitutional claims is
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
When the district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive procedural
ruling is debatable, and that the motion states a debatable
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claim of the denial of a constitutional right. Slack, 529 U.S.
at 484-85. We conclude that Mobley fails to make the requisite
showing.
Accordingly, we deny Mobley’s motion to expand the
certificate of appealability and dismiss the appeal in part.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
VACATED IN PART AND REMANDED WITH INSTRUCTIONS;
DISMISSED IN PART
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