                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-7204



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus

BINH DUY PHAM,
                                            Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CR-02-275; CA-04-655-1)


Submitted:   April 26, 2006                 Decided:   May 25, 2006


Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Binh Duy Pham, Appellant Pro Se.    LeDora Knight, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Binh Duy Pham appealed from the district court’s order

denying relief on his 28 U.S.C. § 2255 (2000) motion, in which Pham

asserted claims of ineffective assistance of counsel and challenged

his sentence on Sixth Amendment grounds.          This court granted a

certificate of appealability on the issue of whether counsel was

ineffective for allegedly insisting that Pham testify at trial,

failing to advise him of his right not to testify, and failing to

warn him that his testimony could result in an obstruction of

justice   enhancement.      The   court    denied   a    certificate     of

appealability and dismissed the appeal with regard to all other

issues.   For the reasons that follow, we now vacate the district

court’s order as to the issue on which we granted a certificate of

appealability and remand with instructions for the court to conduct

further proceedings.

          A grand jury indicted Pham on one count of distribution

of ecstasy, in violation of 21 U.S.C. § 841(a) (2000), and one

count of conspiracy to distribute ecstasy, in violation of 21

U.S.C. § 846 (2000).     After two days of trial during which Pham

testified in his own defense, the jury convicted Pham on both

counts of the indictment.     The district court sentenced Pham to

seventy-eight months in prison, a sentence that reflected an

enhancement   for   obstruction   of   justice   based   on    the   court’s

conclusion that Pham had given false testimony.               Pham’s direct

appeal was unsuccessful.




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           In the only issue remaining in this appeal from the

denial of § 2255 relief, Pham claims that counsel was ineffective

because counsel insisted that Pham testify at trial and failed to

advise him that he had the right not to testify and that he could

face an obstruction of justice enhancement in his sentence if he

testified.    To succeed on his claim of ineffective assistance of

counsel, Pham must show that: (1) counsel’s performance fell below

an   objective   standard    of     reasonableness;     and   (2)    counsel’s

deficient performance was prejudicial.            Strickland v. Washington,

466 U.S. 668, 687-88 (1984).

          In § 2255 proceedings, “[u]nless the motion and the files

and records of the case conclusively show that the prisoner is

entitled to no relief, the court shall . . . grant a prompt hearing

thereon, determine the issues, and make findings of fact and

conclusions of law with respect thereto.”            28 U.S.C. § 2255.      An

evidentiary   hearing   in   open    court   is   required    when   a   movant

presents a colorable Sixth Amendment claim showing disputed facts

beyond the record and a credibility determination is necessary in

order to resolve the issue. United States v. Witherspoon, 231 F.3d
923, 925-27 (4th Cir. 2000); Raines v. United States, 423 F.2d 526,

530 (4th Cir. 1970).         A district court’s decision concerning

whether a hearing is mandatory under § 2255 is reviewed for abuse

of discretion.   Raines, 423 F.2d at 530.

           To counter Pham’s claim, the government submitted the

affidavit of Pham’s trial counsel.            In the affidavit, counsel

stated that


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     [a]lthough I did not force Mr. Pham to testify, I do have
     a specific recollection of telling him that for him to
     have any chance of persuading a jury that his theory of
     the case was true it would require him to testify, [sic]
     I further have a specific recollection of advising him
     that the potential sentencing risk in trying his case was
     that . . . if he went to trial and testified falsely . .
     . he would likely be assessed a 2 point enhancement in
     his sentencing guidelines for obstruction of justice.

The district court relied on counsel’s affidavit in concluding that

Pham did not receive ineffective assistance of counsel, thus

crediting counsel’s statement that he did not compel Pham to

testify and that he warned Pham about the risk of an obstruction of

justice enhancement.          However, Pham submitted his claim under

penalty of perjury and included three affidavits from relatives and

a friend who all asserted that they were present during all

meetings between Pham and his attorney and that counsel insisted

that Pham testify and never advised Pham that he did not have to

testify or warned him that his testimony could result in an

obstruction of justice enhancement.

          In    light    of    the   dispute   in    fact   regarding    Pham’s

ineffective assistance of counsel claim, we find that a credibility

determination    is     necessary    in   order     to   resolve   the   issue.

Accordingly, we vacate the portion of the district court’s order

denying relief on Pham’s claim that counsel was ineffective for

insisting that he testify, failing to advise him of his right not

to testify, and failing to warn him that his testimony could result

in an obstruction of justice enhancement, and remand for further

proceedings.    We dispense with oral argument because the facts and




                                     - 4 -
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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