                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                    _____________

                                     No. 08-2904
                                    _____________

                              EDDY CALISSE CHERYS,

                                                            Appellant

                                            v.

                           UJNITED STATES OF AMERICA


                                      ___________

                           On Appeal from the District Court
                                   for the Virgin Islands
                                  (Civ. No. 01-cv-00213)
                       District Judge: Honorable Curtis V. Gómez
                                       ___________

                    Submitted Under Third Circuit L.A.R. 34.1(a) on
                                 December 14, 2010

         Before: MCKEE, Chief Judge; FUENTES, and SMITH, Circuit Judges

                           (Opinion Filed: January 10, 2011)


Fuentes, Circuit Judge:

      Eddy Calisse Cherys appeals the denial of his habeas corpus petition under 28

U.S.C. § 2255 challenging his conviction pursuant to 21 U.S.C. §§ 841(a)(1) and 846 for

possession of cocaine with intent to distribute. For the reasons given below, we vacate
the order denying Cherys’s petition and remand to the District Court to hold an

evidentiary hearing on Cherys’s claim of ineffective assistance of counsel.1

                                             I.

       Because we write primarily for the parties, we set forth only the facts and history

that are relevant to our conclusion. While in the Guaynabo Metropolitan Detention

Center in late September 1998 awaiting trial in federal court on charges of conspiracy to

possess cocaine with intent to distribute, Eddy Cherys had a psychotic episode. A few

days later, the prison arranged for him to see a psychiatrist, Dr. Gomez, who prescribed

Risperdal (an atypical anti-psychotic) and another, unidentified medication (apparently

psychiatric), which Cherys consented to take. Dr. Gomez diagnosed Cherys as having

schizoaffective disorder, bipolar type, and noted that he was delusional. Cherys claims

that on the following day, a corrections counselor informed Cherys’s trial counsel that

Cherys had had a psychotic episode and had been moved to a special unit and given

medication as a result. Cherys claims that he also informed his trial counsel of this

personally at some point before trial. However, at no point did trial counsel seek a

competency hearing or otherwise raise before the trial court the possibility that Cherys

was not competent to stand trial.

       Cherys’s trial then began on October 5. It lasted five days. He was convicted on

two counts. Cherys claims he remained delusional for the following month. In

November, he had another psychotic episode and was taken to the emergency room.

1
 The District Court had jurisdiction under 28 U.S.C. § 2255; we have jurisdiction under
28 U.S.C. §§ 1291 and 2253.

                                             2
Three days later, Dr. Gomez examined him and observed schizoaffective and delusional

states of mind. He consented to take lithium (a mood stabilizer) and Depakote (another

anti-psychotic).

       In 2000, Cherys appealed his sentence. In 2001, we reversed his conviction on

one count and affirmed it on another. Later in 2001, Cherys raised several issues in a pro

se § 2255 petition, including ineffective assistance of trial counsel for her failure to seek a

competency hearing. The district court denied his petition in 2008 without holding an

evidentiary hearing, relying on Cherys’s remarks to his probation officer (as recorded in

his presentence report) that he was taking Depakote and another drug “for depression that

he has been experiencing since his conviction” and that he had no prior history of mental

illness. Without making a finding that Cherys’s claims that his trial counsel was

informed of his episode by both a corrections counselor and himself were not credible,

the district court concluded that his trial counsel had no “reason to doubt [his]

competence to stand trial,” the standard under United States v. Haywood, 155 F.3d 674,

680 (3d Cir. 1998). The district court also denied a certificate of appealability.

We later granted a certificate of appealability on the issue of the appropriateness of

denying an evidentiary hearing.

                                              II.

       Cherys argues that he is entitled to an evidentiary hearing on his ineffective

assistance of counsel claim. We review a denial of an evidentiary hearing on a § 2255

petition for abuse of discretion. United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008).



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       28 U.S.C. § 2255 provides that, “[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 making findings of fact . . . with

respect thereto.” In the context of an ineffective assistance of counsel claim presented in

a § 2255 petition, a district court must therefore determine whether, considering as true

all “nonfrivolous” factual claims, the petitioner “states a colorable claim for relief” under

Strickland v. Washington, 466 U.S. 668 (1984)—that is, that counsel’s performance was

deficient and that this deficiency prejudiced the petitioner. United States v. Dawson, 857

F.2d 923, 928 (3d Cir. 1988). This standard is liberal. “[A] district court’s failure to

grant an evidentiary hearing when the files and records of the case are inconclusive on the

issue of whether movant is entitled to relief constitutes an abuse of discretion.” United

States v. McCoy, 410 F.3d 124, 131 (3d Cir. 2005) (emphasis added); Lilly, 536 F.3d at

195 (“[T]he District Court’s decision not to hold an evidentiary hearing will be an abuse

of discretion unless it can be conclusively shown that [petitioner] cannot make a claim for

ineffective assistance of counsel.”).

       Mysteriously, in opposing Cherys’s appeal, the United States relies on the

standard articulated in Townsend v. Sain, 372 U.S. 293 (1963). This citation is simply

misplaced, as that case deals with state habeas claims, of the kind now resolved under 28

U.S.C. § 2254. Id. at 295-97. The standard for granting an evidentiary hearing in a

petition under § 2254 is nearly the inverse of that for petitions under § 2255. In a

collateral challenge to a conviction in state court, the district court is not permitted to

hold an evidentiary hearing to develop the factual basis of a claim unless the petitioner

                                               4
meets a highly restrictive standard. 28 U.S.C. § 2254(e)(2). The standard articulated in

cases like Dawson and McCoy hinges on an analysis of the entirely different language in

§ 2255. See, e.g., McCoy, 410 F.3d at 134 (“If [petitioner] . . . alleges any facts

warranting relief under § 2255 that are not clearly resolved by the record, the District

Court was obliged to follow the statutory mandate to hold an evidentiary hearing.”)

(emphasis added). The United States does not attempt to distinguish, or even mention,

the Dawson line of cases, but they control this case.

       We nonetheless must consider whether Cherys has met the Dawson standard, and

we find that the District Court did indeed err in refusing to hold an evidentiary hearing.

Initially, we note that Cherys’s claims do not appear to be frivolous. The District Court

did not make such a finding, and, in the absence of any contradictory evidence in the

record, his assertions that a corrections official notified his trial counsel of his

documented psychotic episode, which occurred shortly before the trial was to begin, and

that he himself mentioned the episode to his attorney, are plausible, at the very least. The

District Court’s reliance on a presentence report which could only have been available to

trial counsel after the trial to determine what trial counsel knew at the time of trial was

inappropriate. And even if Cherys’s comments in his presentence report cast some doubt

on his current claims regarding his mental illness during his imprisonment, under the

circumstances, the report cannot be taken as so reliable as to render actually frivolous

Cherys’s claims of mental illness.

       Assuming that his nonfrivolous factual claims are true, as we must under Dawson,

Cherys has raised at least a colorable claim for ineffective assistance of counsel arising

                                               5
from his trial attorney’s failure to seek a competency hearing. First, counsel’s

performance may have been deficient. A trial attorney should seek a competency hearing

whenever she has “reason to doubt [her client’s] competence to stand trial.” Haywood,

155 F.3d at 680. Given the short period between Cherys’s psychotic episode and the

beginning of trial, and lacking any evidence in the record that Cherys had recovered, if

trial counsel had been informed of the episode, then she certainly had reason to doubt his

competence to stand trial. Thus, he has made out a colorable claim that trial counsel’s

performance was deficient.

       As for the second Strickland prong, prejudice, there is at least a colorable claim

that trial counsel’s failure to request a competency examination prejudiced Cherys. We

have noted that a failure by counsel “to deal appropriately with the likelihood that [a

defendant] was incompetent to stand trial” can give rise to a “reasonable probability” that

the defendant was prejudiced. Hummel v. Rosemeyer, 564 F.3d 290, 305 (3d Cir. 2009).

The standard here, a “colorable” claim, is considerably lower. Therefore, Cherys has

adequately established the possibility that he was prejudiced by his trial counsel’s

allegedly deficient performance. While we take no position at this stage on the merits of

Cherys’s claim of ineffective assistance of counsel, we believe he is entitled to an

evidentiary hearing in order to develop it fully.

                                                  III.

       For the reasons given above, we remand to the District Court for an evidentiary

hearing on Cherys’s claim of ineffective assistance of trial counsel.



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