                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-6025


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

GERALD DECOSTA WHALEY, a/k/a Costa,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of South Carolina, at
Orangeburg. J. Michelle Childs, District Judge. (5:12-cr-00810-JMC-1; 5:15-cv-01613-
JMC)


Submitted: July 26, 2018                                          Decided: August 6, 2018


Before AGEE, KEENAN, and WYNN, Circuit Judges.


Vacated and remanded in part, and dismissed in part by unpublished per curiam opinion.


Gerald Decosta Whaley, Appellant Pro Se. John David Rowell, 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Unpublished opinions are not binding precedent in this circuit.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:

       Gerald Decosta Whaley, a federal prisoner, filed a 28 U.S.C. § 2255 (2012)

motion raising three claims that his trial counsel rendered ineffective assistance. The

district court denied Whaley’s motion in full and declined to issue a certificate of

appealability.   See 28 U.S.C. § 2253(c) (2012).      We granted a partial certificate of

appealability and received further briefing on one of these claims: Whaley’s assertion that

counsel was ineffective for failing to file a direct appeal after Whaley instructed him to

do so. We now conclude that the district court’s dismissal of Whaley’s § 2255 motion

without first holding an evidentiary hearing was an abuse of discretion.

       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(b). An evidentiary hearing in open court

is required when a movant presents a colorable Sixth Amendment claim showing

disputed facts beyond the record or when a credibility determination is necessary in order

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

see also Raines v. United States, 423 F.2d 526, 530 (4th Cir. 1970). This court reviews

for abuse of discretion a district court’s refusal to conduct an evidentiary hearing.

Conaway v. Polk, 453 F.3d 567, 582 (4th Cir. 2006).

       “[A] lawyer who disregards specific instructions from the defendant to file a

notice of appeal acts in a manner that is professionally unreasonable.” Roe v. Flores-

Ortega, 528 U.S. 470, 477 (2000); see also Peguero v. United States, 526 U.S. 23, 28

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(1999); United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993). “[W]hen counsel’s

constitutionally deficient performance deprives a defendant of an appeal that he

otherwise would have taken, the defendant has made out a successful ineffective

assistance of counsel claim entitling him to an appeal.” Flores-Ortega, 528 U.S. at 484.

This rule applies with equal force where, as here, a defendant’s plea agreement contains a

waiver of appellate rights. United States v. Poindexter, 492 F.3d 263, 271-73 (4th Cir.

2007).

         In the proceedings below, Whaley filed an affidavit stating unequivocally that he

informed his counsel at sentencing that Whaley wished to file a direct appeal, but that

counsel failed to file one. Nothing in the district court record specifically rebuts this

allegation. Because the success of this ineffective assistance claim ultimately hinges on a

credibility determination, an evidentiary hearing was required, see Witherspoon, 231 F.3d

at 925-27, and the district court abused its discretion by not holding one. Accordingly, as

to this claim, we vacate and remand with instructions to grant Whaley a hearing on his

claim that counsel failed to appeal the criminal judgment as directed.

         With regard to Whaley’s two remaining ineffective assistance claims, he may not

appeal unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1)(B).     A certificate of appealability will not issue absent “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When

the district court denies relief on the merits, a prisoner satisfies this standard by

demonstrating that reasonable jurists would find that the district court’s assessment of the

constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484

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(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court

denies relief on procedural grounds, the prisoner must demonstrate both that the

dispositive procedural ruling is debatable, and that the motion states a debatable claim of

the denial of a constitutional right. Slack, 529 U.S. at 484-85. We have independently

reviewed the record and conclude that Whaley has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss the appeal as it relates to

Whaley’s two remaining claims.

       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 IN PART;
                                                              DISMISSED IN PART




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