UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-7899

DELTON SCOTT STEVENS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
G. Ross Anderson, Jr., District Judge.
(CR-90-310, CA-94-3380-6-3AK)

Submitted: September 23, 1997

Decided: November 18, 1997

Before HALL and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Delton Scott Stevens, Appellant Pro Se. David Calhoun Stephens,
Assistant United States Attorney, Greenville, South Carolina, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Delton Scott Stevens appeals from the district court's order deny-
ing his motion under 28 U.S.C. § 2255 (1994). 1 We vacate for the sec-
ond time and remand for further proceedings.

Stevens was convicted, after a jury trial involving numerous defen-
dants, of conspiracy to distribute cocaine base and possession with
intent to distribute cocaine base. In his § 2255 motion, Stevens raised
various claims, including a claim that his counsel prevented him from
testifying in his own behalf by threatening him with a more severe
sentence if he testified and was convicted. Without a hearing and
without giving Roseboro2 notice, the district court dismissed Stevens'
petition. Stevens timely appealed.

On appeal, neither the record nor the district court docket sheet
contained an answer or other response from the Government.
Although the district court did not refer to any responsive pleading
from the Government in its final order, the order did reference an affi-
davit by Stevens' trial counsel. However, there was no reference in
the record as to how the court obtained such an affidavit. The affida-
vit was subsequently added as a supplement to the record on appeal.

The affidavit stated that it was made "in support of the United
States Attorney's response to the petitioner's motion." The Govern-
ment's response was never located. Appellant contended, on appeal,
that he never received either a response from the Government or his
trial counsel's affidavit.

Trial counsel, in his affidavit, asserted that he advised Stevens of
his right to testify, and Stevens decided to remain silent. In addition,
_________________________________________________________________
1 Stevens' motion was filed before the passage of the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132,
110 Stat. 1214. The Supreme Court has determined that the AEDPA does
not apply retroactively. See Lindh v. Murphy, 521 U.S. ___, 65 U.S.L.W.
4557 (U.S. June 2, 1997) (No. 96-6298).
2 Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).

                    2
counsel attests that Stevens "indicated to the judge that he understood
his rights and did not wish to testify." Counsel cited to certain pages
of the trial transcript; however, the transcript was not part of the
record and was not included as an affidavit exhibit.

We determined that the district court's failure to give Roseboro
notice was harmless error as to most of Stevens' claims, because
those claims lacked merit. However, we found that Stevens' claims
of ineffective assistance of counsel arising from the alleged violation
of his right to testify on his own behalf was potentially meritorious.
We, therefore, vacated the portion of the district court's order regard-
ing this claim and remanded to the district court with instructions to
give Stevens notice and an opportunity to respond. We affirmed the
remainder of the dismissal order substantially on the reasoning of the
district court. United States v. Stevens, No. 95-6739 (4th Cir. Sept. 21,
1995) (unpublished).

On remand, the district court gave Roseboro notice to Stevens.
According to Stevens, the notice included a copy of his trial counsel's
affidavit, but not a copy of the Government's answer or motion.

Stevens responded by filing an opposition to the motion for sum-
mary judgment and attaching an affidavit. In the affidavit, Stevens
alleges that, after hearing the testimony of his co-conspirators, he told
his trial counsel that he wanted to testify. His counsel refused and
stated that he would "make sure" Stevens received a severe sentence
if he insisted upon testifying. Although he admits that the judge
explained to him that he had a constitutional right to testify, Stevens
describes the colloquy as follows: "all defendants answered affirma-
tively to the questions by the district court concerning their rights to
testify or nor [sic] to testify." He goes on to assert that his acquies-
cence consisted of nodding his head and that his counsel waived the
right on his behalf. Stevens further explains that he would have testi-
fied that he was working full time during the period he was suppos-
edly selling drugs, that he stayed with his mother and did not own a
car or any other assets, and that he was acquainted with members of
the conspiracy but did not know the source of their cocaine and never
received any cocaine from them. Finally, Stevens lists the names of
witnesses who could confirm elements of his affidavit.

                     3
The district court found that the transcript revealed that the trial
court thoroughly explained all of Stevens' rights and made it clear
that the decision of whether or not to testify belonged solely to Ste-
vens, and the district court, therefore, found that Stevens voluntarily
waived his right to testify. Regarding the alleged threats, the district
court failed to explicitly resolve this factual dispute, but did note that
"the attorneys . . . followed proper procedure." Based on the colloquy,
which is not included in the record, and the fact that sufficient evi-
dence supported Stevens' convictions, the district court dismissed
Stevens' motion. Stevens noted a timely appeal to this court. The
record on appeal still does not contain any response from the Govern-
ment or any relevant excerpts from the trial transcript.

If Stevens' counsel flagrantly disregarded Stevens' desire to testify
and employed coercion, intimidation, or threats, Stevens has likely
alleged sufficient facts to state a claim of ineffective assistance of
counsel.3 See Lema v. United States, 987 F.2d 48, 53 (1st Cir. 1993);
Nichols v. Butler, 953 F.2d 1550, 1553 (11th Cir. 1992). Unless it is
clear from the pleadings, files, and record that the prisoner is entitled
to no relief, § 2255 makes a hearing mandatory. Raines v. United
States, 423 F.2d 526, 529 (4th Cir. 1970). Whether a hearing is neces-
sary and whether petitioner's presence is required, are matters best
left to the sound discretion of the district court. Id. at 530. Notwith-
standing the court's discretion in the matter, "[t]here will 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 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-
_________________________________________________________________
3 Even if Stevens can show that his counsel flagrantly disregarded his
wishes, in order to show ineffective assistance, Stevens may also be
required to show that his counsel's errors prejudiced his defense. See
Lema v. United States, 987 F.2d 48, 53 n.4 (1st Cir. 1993)(collecting
conflicting case law concerning whether denial of a defendant's right to
testify is subject to "harmless-error" analysis). Since it is not clear on the
present record whether Stevens can establish malfeasance by his trial
attorney, we decline to address the issue at this time.

                     4
tion of the witnesses. Stevens alleges under penalty of perjury that his
attorney coerced him into remaining silent; the attorney denies in his
affidavit that such misdoing occurred. The district court cannot prefer
the lawyer's affidavit to Appellant's without a hearing. See Williams
v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). While Stevens' declara-
tions in open court carry a presumption of verity, see Blackledge v.
Allison, 431 U.S. 63, 74 (1977), we find that the parsity of the record
and the detailed allegations by Stevens necessitate a hearing.

We therefore vacate the district court's order and remand for fur-
ther proceedings consistent with this opinion. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

VACATED AND REMANDED

                    5
