                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 13-7953


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

JUAN LOPEZ,

                 Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.        Richard L.
Voorhees, District Judge.  (5:06-cr-00041-RLV-DCK-14; 5:10-cv-
00124-RLV)


Submitted:    April 22, 2014                 Decided:   April 30, 2014


Before AGEE and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Juan Lopez, Appellant Pro Se.   Thomas Richard Ascik, Assistant
United States Attorney, Jill Westmoreland Rose, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina; Kevin Zolot,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Juan Lopez seeks to appeal the district court’s order

denying relief on his 28 U.S.C. § 2255 (2012) motion.                             The order

is not appealable unless a circuit justice or judge issues a

certificate of appealability.                 28 U.S.C. § 2253(c)(1)(B) (2012);

see Slack      v.    McDaniel,        529    U.S.    473,      484   (2000)   (discussing

standard for obtaining certificate of appealability).                             Following

careful      review    of     the     record,       we     grant     a    certificate       of

appealability on the issue of whether the district court erred

in   dismissing,       without      an      evidentiary        hearing,    Lopez’s      claim

that   his     trial        counsel      rendered        ineffective       assistance       by

failing to initiate plea negotiations after Lopez directed him

to do so.

             An     evidentiary          hearing     is     required       “[u]nless       the

motion and the files and records of the case conclusively show

that   the    [movant]        is    entitled        to    no    relief.”          28   U.S.C.

§ 2255(b).          Lopez    contends       that    the     district      court    erred   by

crediting trial counsel’s affidavit over his claims that counsel

did not engage in plea negotiations after Lopez directed him to

do so.       We note that Lopez’s and trial counsel’s accounts of

what occurred are starkly opposed.                        We also note that Lopez’s

§ 2255 motion was not in conformity with the requirements of

Rule 2(b)(5) of the Rules Governing Section 2255 Proceedings,

which requires that a § 2255 motion “be signed under penalty of

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perjury by the movant or by a person authorized to sign it for

the movant.”         The commentary to the Rules indicates that the

appropriate remedy for a violation is to allow the movant to

bring his      motion    into     conformity     with   the   rules    rather    than

dismissing the motion outright.               See Kafo v. United States, 467

F.3d 1063, 1069-71 (7th Cir. 2006) (remanding to allow movant to

conform motion to rules).

              The district court did not give Lopez the opportunity

to    bring    his   § 2255     motion   into    conformity     with     the   rules,

instead relying on trial counsel’s affidavit to reject Lopez’s

claim on the merits.          The Supreme Court has recently recognized

the    right    to     “effective    counsel     during      plea   negotiations.”

Missouri v. Frye, 132 S. Ct. 1399, 1407-08 (2012); see Lafler v.

Cooper, 132 S. Ct. 1376, 1384 (2012) (same).                   While there is no

constitutional right to a plea agreement, see Weatherford v.

Bursey, 429 U.S. 545, 561 (1977), and the decision to initiate

plea negotiations is ordinarily a strategic decision within the

purview of defense counsel, Hawkman v. Parratt, 661 F.2d 1161,

1171    (8th    Cir.     1981),     counsel     is   still    required    to    be   a

“reasonably effective advocate” regarding the decision to seek a

plea bargain.        Brown v. Doe, 2 F.3d 1236, 1246 (2d Cir. 1993).

Here, the evidence adduced at trial was so overwhelming that, if

Lopez’s contention that he not only sought to enter a guilty

plea but also directed counsel to negotiate with the Government

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is   credited,      a     debatable      question     arises         regarding    the

effectiveness of trial counsel’s assistance.

             Accordingly, we grant a certificate of appealability

on   Lopez’s     claim    that   his   trial   counsel      was     ineffective   for

failing to initiate plea negotiations with the Government after

Lopez directed him to do so, vacate the district court’s order,

and remand for further proceedings consistent with this opinion. ∗

We   deny   a    certificate     of    appealability     as    to    all   remaining

issues.     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




      ∗
       By this disposition, we express no view as to either the
veracity of Lopez’s version of events or the proper disposition
of this claim, leaving those determinations in the first
instance to the district court.



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