SUPERSEDING OPINION
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES PATRICK MCGRAW,
Plaintiff-Appellant,
v. No. 96-6161
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-93-149, CA-95-104-3-P)
Submitted: October 22, 1996
Decided: January 24, 1997
Before HAMILTON and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.
Kenneth Davis Bell, OFFICE OF THE UNITED STATES ATTOR-
NEY, Charlotte, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
James Patrick McGraw appeals from the district court's order
reversing the magistrate judge's memorandum and recommendations,
and denying McGraw's motion under 28 U.S.C. § 2255 (1994), as
amended by Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214. McGraw's motion claims inef-
fective assistance of counsel based on his trial counsel's failure to
investigate and assert a statute of limitations defense based on his
alleged 1987 withdrawal from the conspiracy to which he pled guilty.
Based on our review of the entire record, the magistrate judge's mem-
orandum and recommendations, and the district court's opinion, we
vacate the district court's opinion, grant McGraw's motion, and
remand the case to the district court with instructions to set aside
McGraw's conviction and give him the right to negotiate a mutually
acceptable plea agreement or to plead not guilty and proceed to trial.
To prevail on an ineffective assistance of counsel claim in the con-
text of a conviction following a guilty plea, McGraw must show that
defense counsel's representation fell below an objective standard of
reasonableness pursuant to the prevailing professional norms, and that
but for counsel's unprofessional errors he would not have pled guilty
and would have insisted on going to trial. See Hill v. Lockhart, 474
U.S. 52, 58 (1985). Although the Hill standard is based upon the
"general" framework for proving ineffective assistance of counsel
when conviction has followed a trial, see Strickland v. Washington,
466 U.S. 668, 687-88, 694 (1984), the "prejudice" analysis contained
in Hill is materially different from Strickland. In order to prove inef-
fective assistance of counsel under Strickland , a petitioner must show
that the result of his trial would have been different. See id. at 694.
However, when the conviction at issue has followed a guilty plea, the
defendant must show that "there is a reasonable probability that, but
for counsel's error, he would not have pleaded guilty and would have
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insisted on going to trial." Hill, 474 U.S. at 59. "Because a guilty plea
is valid only if it represents a knowing and voluntary choice among
alternatives," defense counsel has a duty to investigate possible
defenses and to advise the defendant so that he can make an informed
decision. Savino v. Murray, 82 F.3d 593, 599 (4th Cir.), cert. denied,
117 S. Ct. 1 (1996); see Via v. Superintendent, Powhatan Correc-
tional Ctr., 643 F.2d 167, 174 (4th Cir. 1981) (discussing the duties
and obligations of defense counsel). Of course, there is no prejudice
if there was no reasonable probability that the withdrawal defense
would have succeeded at trial. Hill, 474 U.S. 59; Savino, 82 F.3d at
599.
Given the facts which were known, or should have been known
through diligent investigation and legal research, to trial defense
counsel prior to advising McGraw to plead guilty, we find that
McGraw had at least a colorable withdrawal defense, i.e., he had a
colorable claim that he withdrew from the conspiracy. United States
v. Urbanik, 801 F.2d 692 (4th Cir. 1986). The viability of that defense
was a jury question. Hyde v. United States, 225 U.S. 347, 371 (1912);
United States v. Wooten, 688 F.2d 941, 946 (4th Cir. 1982); United
States v. Grubb, 527 F.2d 1107, 1109 (4th Cir. 1975). However,
McGraw never was given the opportunity to present his colorable
withdrawal defense to the jury because counsel told him to plead
guilty after conducting an ineffective and cursory investigation into
the circumstances surrounding McGraw's alleged withdrawal.
Accordingly, we find that trial defense counsel was ineffective, and
that but for defense counsel's errors, McGraw would not have pled
guilty and would have insisted on going to trial. See Hill, 474 U.S.
at 56, 58.
We grant the Appellee's motion to supplement the record. We dis-
pense 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
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