                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-6471


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CECIL RAY, JR., a/k/a Esco,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge.   (3:06-cr-00008-JPB-JSK-1; 3:10-cv-00057-
JPB-JSK)


Submitted:   November 27, 2013              Decided:   December 6, 2013


Before WILKINSON, KING, and KEENAN, Circuit Judges.


Vacated in part and remanded by unpublished per curiam opinion.


Cecil Ray, Jr., Appellant Pro Se.       Paul       Thomas Camilletti,
Thomas Oliver Mucklow, Assistant United            States Attorneys,
Martinsburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Cecil    Ray,        Jr.,   a   federal           prisoner,     filed    a   28

U.S.C.A. § 2255 (West Supp. 2013) motion contending, inter alia,

that his counsel was ineffective in advising him to reject the

Government’s second plea offer in favor of proceeding to trial,

and in advising him as to his sentence exposure if he proceeded

to   trial.      Ray    sought       to   appeal       the      district     court’s    order

denying   relief       on    his    motion    and      a       subsequent    order    denying

reconsideration.            We granted Ray a certificate of appealability

and received the Government’s                    response on these two issues. 1

Because we conclude an evidentiary hearing was warranted, we

vacate in part and remand with instructions to grant Ray an

evidentiary on these two related claims.

              Ray was charged with conspiracy to possess with intent

to distribute, in excess of fifty grams of cocaine base (Count

One), and aiding and abetting the distribution of 1.95 grams of

cocaine   base     within       1000      feet    of       a    school,     (Count    Eight).

Although two plea agreements were offered, both containing a

plea to Count Eight only and with a stipulation to significantly

reduced total drug relevant conduct amounts, Ray rejected both

offers and proceeded to trial.                     A jury convicted Ray on both


      1
        We denied a certificate of appealability                                as    to   the
remaining issues Ray raised in his § 2255 motion.



                                              2
counts.      After calculating a Guidelines range of 360 months to

life imprisonment on Count One, the district court imposed a

sentence of life imprisonment on Count One and a concurrent 40-

year sentence on Count Eight.                  This Court affirmed on direct

appeal.      United States v. Ray, 317 F. App’x 346 (4th Cir. 2009).

               In his § 2255 motion, Ray alleged, in pertinent part,

that trial counsel was ineffective in failing to explain that if

he   rejected        the   Government’s    plea      offer,    his    exposure     would

yield a range of 360 months to life.                   According to Ray, counsel

had informed him that if he went to trial, ten years was the

most    that      he   could    receive.       In    his   motion     to   amend,      Ray

explained that his second trial attorney, Craig Manford opined

that, given the Government’s presentation of a second plea offer

with reduced relevant conduct and lack of hard evidence outside

of the potential testimony of cooperating witnesses, Ray could

win at trial.          Manford further counseled that the Government had

no wire taps, little video or other surveillance.

               Ray     stated   that   Manford        expressly      advised     him    to

reject the second agreement because the Government was “showing

a lack of faith in their [sic] case by reducing the relevant

conduct      as   to    drug    weight.”       Ray    averred     that     had   counsel

properly advised him of the law rather than adopting a “don’t

worry   be     happy”      trial   strategy,     he    would    have     accepted      the

second plea offer.           He further alleged counsel never advised Ray

                                           3
that he had no viable defenses to the conspiracy charge.                                 In

fact, according to Ray, counsel misled him into believing the

Government would not be able to convict him on Count One because

he did not make the actual sale to the confidential informant,

and that the Government would not be able to convict him on

Count Eight under an aiding and abetting theory. 2

              To succeed on his ineffective assistance claim, Ray

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

objective standard of reasonableness and (2) counsel’s deficient

performance was prejudicial.              See Strickland v. Washington, 466

U.S. 668, 687 (1984).            The Supreme Court addressed the standard

for showing ineffective assistance during the plea bargaining

stage in Lafler v. Cooper, 132 S. Ct. 1376 (2012), and Missouri

v. Frye, 132 S. Ct. 1399 (2012).                   In Lafler, the Court held that

the    Sixth      Amendment      right   to       counsel      applies    to   the     plea

bargaining process and prejudice occurs when, absent deficient

advice, the defendant would have accepted a plea that would have

been       accepted   by   the     court,         and   that    “the     conviction      or

sentence, or both, under the offer’s terms would have been less


       2
       Because there is no affidavit from counsel, it is unclear
exactly what evidence counsel anticipated would be presented
against Ray at trial. What is known is that Ray did not testify
or call witnesses in his defense and, on appeal, this Court
found sufficient evidence to sustain his convictions. Ray, 317
F. App’x at 349-50.



                                              4
severe than under the judgment and sentence that in fact were

imposed.”      132 S. Ct. at 1385.

              In Frye, the Supreme Court held that a component of

the   Sixth    Amendment      right       to    counsel      in     the   plea     bargaining

context is that counsel has a duty to communicate any offers

from the Government to his client.                        132 S. Ct. at 1408.              Under

Frye, in order to show prejudice from ineffective assistance of

counsel where a plea offer has lapsed or been rejected because

of counsel’s deficient performance, a defendant must demonstrate

a reasonable probability he would have accepted the earlier plea

offer had he been afforded effective assistance of counsel.                                 Id.

at    1409.     Additionally,         a    defendant         must    show    that    “if    the

prosecution had the discretion to cancel it or if the trial

court had the discretion to refuse to accept it, there is a

reasonable      probability         neither         the   prosecution       nor    the     trial

court   would       have   prevented       the       offer   from     being    accepted      or

implemented.”        Id. at 1410.

              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.A. § 2255(b).            An evidentiary hearing in open court is

required      when    a    movant    presents         a   colorable       Sixth     Amendment

                                                5
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, 926-27 (4th

Cir. 2000).

             While the district court acknowledged that there was

no objective evidence tending to disconfirm Ray’s declarations,

and that a hearing was typically warranted in such situations,

it   found      a   number    of   Ray’s    contentions           “far-fetched.”           The

district court ruled that, even if genuine issues of material

fact existed from the lack of affidavit from trial counsel, Ray

failed     to       show    prejudice     as       a     result    of    his    attorney’s

representations.

             We      conclude      that    the         district    court       abused    its

discretion in failing to conduct an evidentiary hearing on Ray’s

ineffective         assistance      of    counsel         claims    relating        to   his

rejection of the Government’s second plea offer, specifically

counsel’s alleged advice to reject the Government’s second plea

offer and counsel’s alleged failure to properly advise Ray of

the consequences of rejecting the plea offer.                           As to prejudice,

we conclude that Ray has made a colorable showing that, absent

counsel’s advice, he would have accepted a plea that would have

been     accepted      by    the   court,          and    that    “the    conviction       or

sentence, or both, under the offer’s terms would have been less



                                               6
severe than under the judgment and sentence that in fact were

imposed.”        Lafler, 132 S. Ct. at 1385.

                 In order to show deficient performance, Ray must show

that counsel’s representations fell below an objective standard

of reasonableness.                Merzbacher v. Shearin, 706 F.3d 356, 363

(4th Cir.), cert. denied,                  ___ U.S. ___, 2013 WL 1808678 (Oct.

7, 2013) (No. 12-9952).                “Courts indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable

professional assistance in order to avoid the distorting effects

of   hindsight.”            Id.    (internal      quotation      marks      and   citation

omitted); see also Burt v. Titlow, ___ U.S. ___, 2013 WL 5904117

at *6 (Nov. 5, 2013) (“[C]ounsel should be ‘strongly presumed to

have   rendered          adequate     assistance         and   made   all     significant

decisions          in     the      exercise         of    reasonable         professional

judgment’ . . . and . . . the burden to ‘show that counsel’s

performance was deficient’ rests squarely on the defendant.”)

(citations         omitted).          “A    failure       to   provide       professional

guidance to a defendant regarding his sentence exposure prior to

a    plea    may        constitute     deficient         assistance.”         Magana    v.

Hofbauer, 263 F.3d 542, 550 (6th Cir. 2001); see also United

States      v.    Gordon,    156     F.3d    376,    379-81    (2d    Cir.    1998)    (per

curiam)          (recognizing        ineffective          assistance        claim     where

counsel’s         gross     misadvice        regarding         potential       sentencing



                                              7
exposure caused defendant to reject plea offer); United States

v. Day, 969 F.2d 39, 42-43 (3d Cir. 1992) (same).

           The     record     as     it    stands       is     bare.         By    his    own

admission, Ray was aware that he was facing a maximum of life

imprisonment.        His claim however appears to be that, had his

attorney explained the impact of the Guidelines and that his

Guidelines range could be 360 months to life, he would have

accepted the plea offer.             Certainly, to the extent Ray argues

that   trial   counsel      failed    to    anticipate         his     enhancements        at

sentencing based on his leadership role and his intimidation of

witnesses, the court properly found counsel could not reasonably

have   anticipated      these      enhancements         when    the     bases      for    the

enhancements were not discovered until trial.                         Other than Ray’s

own assertions in his affidavit and pleadings, however, there is

no evidence as to what transpired during the plea negotiations

between Ray and his counsel, what advice counsel gave Ray with

respect   to   the    Government’s         second      plea     offer,       and   on    what

basis.    We     therefore    conclude         the     district      court    abused      its

discretion in failing to conduct an evidentiary hearing.

           Accordingly, we vacate in part the district court’s

dismissal of Ray’s 28 U.S.C.A. § 2255 motion.                           We remand with

instructions to grant Ray an evidentiary hearing on his claim

that   counsel    was   ineffective         in   advising        Ray    to    reject     the

Government’s      second     plea    offer       and    his     related       claim      that

                                           8
counsel failed to accurately advise him of the consequences of

rejecting this offer.        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.         We, of course, offer no view as to the

merits of Ray’s claim.

                                            VACATED IN PART AND REMANDED




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