United States v. Tanesha Bannister

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6658

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

TANESHA BANNISTER,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:02-cr-00548-CMC-40; 3:10-cv-70277-CMC)

Submitted: February 17, 2012 Decided: February 23, 2012

Before GREGORY, DUNCAN, and WYNN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Tanesha Bannister, Appellant Pro Se. Beth Drake, Mark C. Moore,
Jane Barrett Taylor, Assistant United States Attorneys,
Columbia, South Carolina for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Tanesha Bannister appeals the district court’s order

denying relief on her 28 U.S.C.A. § 2255 (West Supp. 2011)

motion, in which she asserted that counsel provided ineffective

assistance by failing to: (1) communicate a plea offer; (2)

explain fully how relevant conduct and acceptance of

responsibility would affect her case; and (3) explain fully the

application of the 21 U.S.C. § 851 (2006) enhancement and how it

would affect Bannister’s statutory mandatory minimum sentence.

We previously granted Bannister a certificate of appealability

on these issues. For the reasons that follow, we vacate and

remand for further proceedings.

Generally, an evidentiary hearing is required under

§ 2255 unless it is clear from the pleadings, files, and records

that a movant is not entitled to relief. United States v.

Witherspoon, 231 F.3d 923, 925-27 (4th Cir. 2000); Raines v.

United States, 423 F.2d 526, 529-30 (4th Cir. 1970). Whether an

evidentiary hearing is necessary is best left to the sound

discretion of the district court. Raines, 423 F.2d at 530.

However, when a movant presents a colorable Sixth Amendment

claim showing disputed facts involving inconsistencies beyond

the record, a hearing is mandated. See United States v. Magini,

973 F.2d 261, 264 (4th Cir. 1992); see also Raines, 423 F.2d at

530 (“There will remain . . . a category of petitions, usually

2
involving credibility, that will require an evidentiary hearing

in open court.”).

Because whether counsel’s performance fell below an

objective standard of reasonableness turns on credibility

determinations, and since it is not apparent, given the current

state of the record, that Bannister suffered no prejudice if

counsel’s performance was deficient, we vacate the district

court’s order and remand for further proceedings. We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and

argument would not aid the decisional process.

VACATED AND REMANDED