UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 95-6634

CARLOS STUFFLE,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-90-5-P, CA-94-361-P)

Submitted: December 12, 1995

Decided: August 7, 1997

Before WILKINSON, Chief Judge, WILKINS, Circuit Judge, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

Carlos Stuffle, Appellant Pro Se. Robert James Conrad, Jr., Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Carlos Stuffle appeals from the district court's order denying his
motion under 28 U.S.C. § 2255 (1988), amended by Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214. We affirm the order in part, vacate in part, and remand for fur-
ther proceedings.

Stuffle pled guilty in August 1990 to conspiracy to possess with
intent to distribute and distribution of cocaine in violation of 21
U.S.C. §§ 841(a)(1), 846 (1988). He was sentenced to 144 months of
imprisonment.

In his § 2255 motion Stuffle claims: (1) that his sentence was
improperly calculated; (2) that he received ineffective assistance of
counsel because his counsel failed to request a judicial recommenda-
tion against deportation ("JRAD"); (3) counsel was not present when
he was interviewed by the probation officer; (4) counsel failed to file
a timely notice of appeal of his sentence as requested; and (5) because
prior to his conviction the Government seized and forfeited $1350 he
owned, his conviction, based upon the same conduct, violates the
Double Jeopardy Clause.

With respect to Stuffle's first three claims we affirm on the reason-
ing of the district court because our review of the record reveals no
reversible error. United States v. Stuffle, Nos. CR-90-5-P; CA-94-361-
P (W.D.N.C. Feb. 21, 1995).

With respect to the allegation that Stuffle's counsel failed to file a
timely appeal we note that such failure may constitute ineffective
assistance of counsel regardless of the likelihood of success on the
merits. United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993). Unless
it is clear from the pleadings, files, and records that the prisoner is
entitled to no 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. Id. at 530. A district court's decision of

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whether to conduct a hearing and whether petitioner's presence is
required is reviewed for abuse of discretion. Id. (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 remain, however, a category of petitions, usually involv-
ing credibility, that will require an evidentiary hearing in open court."
423 F.2d at 530. "When the issue is one of credibility, resolution on
the basis of affidavits can rarely be conclusive . .. ." Id.

This case presents factual issues requiring an evidentiary hearing.
The dispute is purely factual and turns upon a credibility determina-
tion of the witnesses. Stuffle alleges under penalty of perjury that he
requested an appeal; his attorney denies in his affidavit that such a
request was made. The district court cannot prefer the lawyer's affida-
vit to Appellant's verified pleadings without a hearing. Williams v.
Griffin, 952 F.2d 820, 823 (4th Cir. 1991).

With respect to Stuffle's double jeopardy claim, the district court
dismissed the claim as frivolous without further discussion. The
record does not reveal under which statute Stuffle's property was for-
feited. The Supreme Court has recently ruled that an analysis of
whether prosecution for an offense based upon the same conduct as
a prior civil forfeiture violates double jeopardy requires an analysis
of the individual forfeiture statute. See United States v. Ursery, ___
U.S. ___, 64 U.S.L.W. 4565, 4571-72 (U.S. June 24, 1996) (Nos. 95-
345, 95-346). Accordingly, we find the record insufficient for appel-
late review because it is not clear which statute, if any, was used to
forfeit Stuffle's property.*

We affirm the district court's order on all grounds except for
whether Stuffle's attorney failed to file a notice of appeal as requested
and whether Stuffle's conviction violates double jeopardy. With
regard to these two issues, we vacate the district court's order and
remand for further proceedings consistent with this opinion.
_________________________________________________________________

*It may well be that Stuffle's claim was dismissed as frivolous
because no property was actually forfeited. The record, however, is
undeveloped on this point.

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We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the Court and
argument would not aid the decisional process.

AFFIRMED IN PART, VACATED
IN PART, AND REMANDED

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