877 F.2d 61
Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Jean-Marc MANCUSO, Defendant-Appellant.
No. 88-7795.
United States Court of Appeals, Fourth Circuit.
Submitted March 28, 1989.
Decided June 6, 1989.
Jean-Marc Mancuso, appellant pro se.
Katharine Jacobs Armentrout, Office of the United States Attorney, for appellee.
Before WIDENER, PHILLIPS, and SPROUSE, Circuit Judges.
PER CURIAM:
Jean-Marc Mancuso filed a 28 U.S.C. Sec. 2255 motion alleging that the Federal Public Defender denied him the right to appeal his convictions for distribution of and conspiracy to distribute cocaine. After receiving the motion, the court wrote the Public Defender and requested that he submit an affidavit if he disputed any of Mancuso's claims. The Public Defender filed an affidavit, and the court determined on the basis of the affidavit "that Mancuso's allegations are absolutely and entirely without basis." The court denied the motion. We vacate and remand for further proceedings.
This is not a case in which "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. Sec. 2255. Mancuso's motion and supporting affidavits make allegations which, if proven, might warrant relief. The Public Defender's affidavit refutes Mancuso's allegations. There exists in this case a dispute as to the material facts. Under these circumstances, the statute mandates a prompt hearing on the motion. 28 U.S.C. Sec. 2255.1
We vacate the judgment of the district court and remand the case for further proceedings. On request, the district court should require a response by the United States, and proceed from there.
Mancuso has moved to expand the record on appeal to include a transcript of his sentencing. As the transcript was not before the district court and is not necessary to disposition of the appeal, the motion is denied. We leave to the district court's discretion whether preparation of the transcript is appropriate on remand.
As the dispositive issues recently have been decided authoritatively, we dispense with oral argument.
VACATED AND REMANDED.
We note that in considering a motion brought under 28 U.S.C. Sec. 2255, a court may not resolve disputed factual issues against the movant solely on the basis of government affidavits. United States v. Constanzo, 625 F.2d 465 (3d Cir.1980); Owens v. United States, 551 F.2d 1053 (5th Cir.), cert. denied, 434 U.S. 848 (1977)