                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-7576


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HAROLD EARL BLONDEAU,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville.   Malcolm J. Howard,
Senior District Judge. (5:09-cr-00117-H-1; 5:11-cv-00124-H)


Submitted:   February 23, 2012                  Decided:   May 11, 2012


Before KING and    DAVIS,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Vacated in part and remanded by unpublished per curiam opinion.


Harold Earl Blondeau, Appellant Pro Se.     Seth Morgan Wood,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Harold Earl Blondeau, a federal prisoner, filed a 28

U.S.C.A. § 2255 (West Supp. 2011) motion contending, among other

claims,     that       his    trial        counsel         were     unconstitutionally

ineffective in failing to consult with him regarding his desire

to   file   an    appeal.         We     granted      Blondeau      a     certificate          of

appealability      and     received       further      briefing      on    the        issue    of

counsel’s alleged failure to consult with Blondeau regarding his

appellate prospects.          We now conclude that the district court’s

dismissal of Blondeau’s § 2255 motion without first holding an

evidentiary      hearing     was    an    abuse       of   its     discretion.           As     a

result, we vacate in part and remand with instructions to grant

Blondeau    a    hearing     on    his    ineffective           assistance       of    counsel

claim.

            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.

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2000); see also Raines v. United States, 423 F.2d 526, 530 (4th

Cir. 1970).        This court reviews a district court’s refusal to

conduct      an   evidentiary   hearing      for     an    abuse   of   discretion.

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

              Our review of the circumstances of this case convinces

us    that   Blondeau’s   counsel    had      a     duty    to   consult   Blondeau

regarding his wishes to file an appeal.                      See Roe v. Flores-

Ortega, 528 U.S. 470, 478-80 (2000); United States v. Cooper,

617 F.3d 307, 313 (4th Cir. 2010); United States v. Poindexter,

492 F.3d 263, 269 (4th Cir. 2007).                  Accordingly, the ultimate

success of Blondeau’s § 2255 motion depends on whether counsel

actually did or did not consult with him about his appellate

preferences.         Blondeau   claims       that    they    did   not,    but    the

district court dismissed his § 2255 motion without conducting

any sort of inquiry into the issue.                 Because whether Blondeau’s

assertions are correct with respect to his counsel’s conduct

necessarily requires a credibility determination, or at least

the    receipt     of   evidence    outside         the     present     record,   an

evidentiary hearing was required.              See Witherspoon, 231 F.3d at

925-27.      The district court therefore abused its discretion in

failing to hold one.

              Accordingly, we vacate in part the district court’s

dismissal of Blondeau’s 28 U.S.C. § 2255 motion and remand with

instructions to grant him an evidentiary hearing on his claim

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that counsel failed to consult with him regarding his desire to

file an appeal.        We deny Blondeau’s motion for appointment of

counsel.    We dispense with oral argument because the facts and

legal    contentions    are   adequately   presented    in    the    materials

before   the   court   and    argument   would   not   aid   the    decisional

process.



                                                             VACATED IN PART
                                                                AND REMANDED




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