                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 03-7912



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


PAUL ANDREW STOKES, JR.,

                                                 Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
District Judge. (CR-98-145-3; CA-03-296-2)


Submitted:   October 1, 2004                 Decided:   November 2, 2004


Before NIEMEYER, KING, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Paul Andrew Stokes, Jr., Appellant Pro Se.  Janet S. Reincke,
Assistant United States Attorney, Newport News, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Paul   Andrew    Stokes,   Jr.,    appeals   from    the   district

court’s order denying relief on his motion filed under 28 U.S.C.

§   2255   (2000).      We   previously    issued   an   order    granting     a

certificate of appealability as to Stokes’ claim that his attorney

provided ineffective assistance, resulting in Stokes being denied

the right to testify in his defense.*           After receiving additional

briefing on this issue, we now vacate the district court’s order

and remand for further proceedings.

            “[A] criminal defendant has a constitutional right to

testify on his own behalf at trial.”          United States v. Midgett, 342

F.3d 321, 325 (4th Cir. 2003) (citing Rock v. Arkansas, 483 U.S.

44, 51 (1987)).      This right may be waived, as long as the waiver is

made knowingly and voluntarily. United States v. Mullins, 315 F.3d

449, 452, 454-55 (5th Cir. 2002).

            In his § 2255 motion, Stokes claimed that he received

ineffective assistance of counsel when counsel failed to advise him

of his right to testify and further refused to let him testify.               He

asserted that, had he been properly advised and allowed to testify,

he would have been able to refute the government’s evidence.

Stokes submitted a sworn affidavit to this effect and also attested

that counsel threatened to withdraw from the case and tell the



      *
      We denied a certificate of appealability                  and    dismissed
Stokes’ appeal as to his remaining issues.

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court that Stokes was a liar if he chose to testify.        Stokes’

affidavit also includes his sworn statements that he informed his

attorney that he wished to testify on his behalf and that he

requested to testify after his attorney presented the testimony of

three witnesses on his behalf.

          Counsel filed an affidavit stating that he asked Stokes

numerous times whether he wanted to testify.    He submitted a copy

of a page from his trial notes on which he wrote to Stokes during

the trial proceedings, inquiring if Stokes wanted to testify, and

Stokes responded, “I don’t plan to.” Counsel stated that his trial

notes also reflected that, after the last defense witness was

dismissed, he asked Stokes if he wished to testify and Stokes

“declined to exercise that right.”

          Unless it is clear from the pleadings, files, and records

that the prisoner is not entitled to relief, § 2255 makes an

evidentiary hearing mandatory.    28 U.S.C. § 2255; Raines v. United

States, 423 F.2d 526, 529 (4th Cir. 1970).   The district court may

expand the record to include letters, documents and affidavits.

Raines, 423 F.2d at 529-30. A district court's decision of whether

a hearing is mandatory under § 2255 and whether petitioner's

presence is required at the hearing is reviewed for abuse of

discretion.   Id. at 530 (citing Machibroda v. United States, 368

U.S. 487 (1962)).   Notwithstanding the court's ability to expand

the record and its wide discretion in the matter, "[t]here will


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remain,    however,   a   category    of     petitions,    usually   involving

credibility, that will require an evidentiary hearing in open

court."    Id.   "When the issue is one of credibility, resolution on

the basis of affidavits can rarely be conclusive . . . ."              Id.

            In denying § 2255 relief on this issue, the district

court stated that there was no evidence in the record to support

Stokes’ claim and, in fact, all of the evidence was contrary to

Stokes’ claim. However, we find that the conflicting statements in

the affidavits submitted by Stokes and counsel create a factual

dispute requiring an evidentiary hearing.                 Resolution of this

credibility dispute cannot be made on affidavits alone.                      See

Raines, 423 F.2d at 530.

            Accordingly, we vacate the district court’s order as to

this issue and remand for further proceedings consistent with this

opinion.    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




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