                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-7190


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

CALVIN JAMES HALL, a/k/a Kebo,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of South Carolina, at
Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:12-cr-00513-JFA-16; 3:17-
cv-02737-JFA)


Submitted: May 29, 2019                                           Decided: June 12, 2019


Before NIEMEYER, KING, and QUATTLEBAUM, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Calvin James Hall, Appellant Pro Se. John David Rowell, Assistant United States
Attorney, Kathleen Michelle Stoughton, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Calvin James Hall appeals the district court’s order denying relief on his 28 U.S.C.

§ 2255 (2012) motion. We granted a certificate of appealability on Hall’s claim that the

district court erred in rejecting, without an evidentiary hearing, Hall’s claim that trial

counsel rendered ineffective assistance by failing to properly advise him with respect to

the Government’s plea offer. * For the reasons that follow, we vacate the district court’s

order and remand for an evidentiary hearing.

       In evaluating a district court’s denial of a § 2255 motion, we review findings of

fact for clear error and legal conclusions de novo. United States v. MacDonald, 911 F.3d

723, 797 (4th Cir. 2018). A claim of ineffective assistance of counsel presents a mixed

question of law and fact that we review de novo. United States v. Ragin, 820 F.3d 609,

617 (4th Cir. 2016).     To succeed on an ineffective assistance of counsel claim, a

defendant “must show that counsel’s performance was deficient” and “that the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687

(1984).

       The Sixth Amendment right to effective assistance of counsel extends to the plea-

bargaining process. Merzbacher v. Shearin, 706 F.3d 356, 363 (4th Cir. 2013); see

Padilla v. Kentucky, 559 U.S. 356, 373 (2010). “[A]s a general rule, defense counsel has

the duty to communicate formal offers from the prosecution to accept a plea on terms and

       *
        Because the district court’s resolution of the additional claims Hall seeks to raise
on appeal is not debatable or wrong, we deny Hall’s request to expand the certificate of
appealability.


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conditions that may be favorable to the accused.” Missouri v. Frye, 566 U.S. 134, 145

(2012). In order to establish deficient performance, Hall must demonstrate that trial

counsel’s advice during plea negotiations “fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688; see Merzbacher, 706 F.3d at 363 (applying

Strickland standard for deficient performance in plea-negotiation context).                To

demonstrate prejudice where counsel’s allegedly deficient performance led to the

rejection of a plea offer, the defendant must demonstrate that, but for counsel’s

ineffective advice, a reasonable probability exists “that the defendant would have

accepted the plea and the prosecution would not have withdrawn it in light of intervening

circumstances,” that the court would have accepted the offer, and that the defendant

would have been convicted of less serious charges or received a less severe sentence than

the judgment actually imposed. Lafler v. Cooper, 566 U.S. 156, 164 (2012).

       The district court must hold an evidentiary hearing on a § 2255 motion “[u]nless

the motion and the files and records of the case conclusively show that the prisoner is

entitled to no relief.” 28 U.S.C. § 2255(b); see United States v. Thomas, 627 F.3d 534,

539 (4th Cir. 2010).     The determination of whether to hold an evidentiary hearing

ordinarily is left to the sound discretion of the district court. Raines v. United States, 423

F.2d 526, 530 (4th Cir. 1970). However, “if the parties produce evidence disputing

material facts with respect to non-frivolous habeas allegations, a court must hold an

evidentiary hearing to resolve those disputes.” United States v. White, 366 F.3d 291, 297

(4th Cir. 2004); see also Raines, 423 F.2d at 530 (recognizing “a category of petitions,

usually involving credibility, that will require an evidentiary hearing in open court”). An

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evidentiary hearing is “especially warranted” when factual allegations in a § 2255 motion

“relate primarily to purported occurrences outside the courtroom and upon which the

record could, therefore, cast no real light, and where the ultimate resolution rests on a

credibility determination.” White, 366 F.3d at 302 (alteration, citations, and internal

quotation marks omitted).

       Here, the district court denied Hall’s claim because it found that Hall’s arguments

that he would have accepted a plea agreement never offered by the Government were

futile. However, Hall submitted a sworn affidavit raising complaints about advice he

received from counsel during the plea negotiations that Hall alleged led him to reject the

plea offer, and trial counsel expressly denied Hall’s allegations in a competing affidavit.

We conclude that the district court abused its discretion in failing to conduct an

evidentiary hearing before deciding this issue. See 28 U.S.C. § 2255(b); Payne v. Pauley,

337 F.3d 767, 770 (7th Cir. 2003) (“[S]ummary judgment cannot be used to resolve

swearing contests between litigants.”).

       Because resolution of Hall’s ineffectiveness claim turns, in part, on credibility, we

vacate the district court’s order and remand for an evidentiary hearing to determine

whether Hall’s trial counsel was ineffective by failing to properly advise Hall with

respect to the Government’s plea offer. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

                                                            VACATED AND REMANDED



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