UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7711
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRYL BOYNES, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:05-cr-00313-JRS-1; 3:10-cv-00716-JRS)
Submitted: June 1, 2012 Decided: June 13, 2013
Before KING, GREGORY, and AGEE, Circuit Judges.
Dismissed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Darryl Boynes, Jr., Appellant Pro Se. Peter Sinclair Duffey,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darryl Boynes, Jr., seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2255 motion. See United
States v. Boynes, No. 3:05-cr-00313 (E.D. Va. Oct. 20, 2011).
The order is not appealable unless a circuit justice or judge
issues a certificate of appealability. See 28 U.S.C.
§ 2253(c)(1)(B). We hereby grant a certificate of appealability
on the issue of whether the district court erred in dismissing,
without an evidentiary hearing, Boynes’s claim that his lawyer
Mark Tyndall rendered ineffective assistance due to a conflict
of interest (the “Sixth Amendment claim”).
The premise of the Sixth Amendment claim is that, because
of Tyndall’s friendship with former defense counsel Jeffrey
Everhart, Tyndall refused to allow Boynes to testify at a July
31, 2006 post-trial hearing in support of his contention that
Everhart waived Boynes’s right to a jury trial without his
knowledge and consent. The district court determined that the
jury waiver was valid, and, on direct appeal, we affirmed. See
United States v. Boynes, 515 F.3d 284 (4th Cir. 2008). In these
subsequent § 2255 proceedings, Boynes alleges that he had
insisted to Tyndall “that he wanted to explain to the court that
. . . he never discussed [with Everhart] waiving his right to
jury trial.” Informal Br. of Appellant 12. Boynes further
asserts that he was informed by Tyndall, “at the end of the
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hearing on July 31, 2006,” that Tyndall “could not pursue the
issue to the district court because of his friendship and close
relationship with [Everhart].” Id. at 12, 15.
Proving the Sixth Amendment claim will be no easy task for
Boynes. In order to avoid having to demonstrate prejudice,
Boynes must show that Tyndall labored under an “actual conflict
of interest.” See Cuyler v. Sullivan, 446 U.S. 335 (1980). As
we have explained,
[t]he Sullivan standard requires a showing that (1)
petitioner’s lawyer operated under a “conflict of
interest” and (2) such conflict “adversely affected
his lawyer’s performance.” 446 U.S. at 348. If the
petitioner makes this showing, prejudice is presumed
and nothing more is required for relief. See id. at
349-50.
United States v. Nicholson, 611 F.3d 191, 205 (4th Cir. 2010).
Absent an actual conflict of interest, the usual standard for
Sixth Amendment ineffective assistance claims applies. Under
that standard, Boynes would have to show “‘that counsel’s
performance was deficient’ and ‘that the deficient performance
prejudiced the defense.’” Nicholson, 611 F.3d at 205 (quoting
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Despite the difficulties confronting Boynes in his effort
to prove the Sixth Amendment claim, we cannot say that his
“motion and the files and records of the case conclusively show
that [he] is entitled to no relief.” See 28 U.S.C. § 2255(b).
Accordingly, an evidentiary hearing is required. See, e.g.,
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United States v. Magini, 973 F.2d 261, 264 (4th Cir. 1992)
(“When a colorable Sixth Amendment claim is presented, and where
material facts are in dispute involving inconsistencies beyond
the record, a hearing is necessary.”).
We therefore vacate the district court’s judgment as to the
Sixth Amendment claim and remand for an evidentiary hearing on
that claim only. As to Boynes’s other claims, we deny a
certificate of appealability and dismiss the appeal. 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.
DISMISSED IN PART,
VACATED IN PART,
AND REMANDED
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