                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-6412



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


SAMMY RAY O’QUINN,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham.  Frank W. Bullock, Jr.,
District Judge. (CR-02-50; CA-04-251-1)


Submitted:   January 25, 2006          Decided:     February 16, 2006


Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Sammy Ray O’Quinn, Appellant Pro Se.       Sandra Jane Hairston,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Sammy Ray O’Quinn appeals from the district court’s order

accepting the recommendation of the magistrate judge and denying

relief on his motion filed under 28 U.S.C. § 2255 (2000).        We

previously granted a certificate of appealability as to O’Quinn’s

sole issue on appeal:   whether his attorney provided ineffective

assistance with respect to the government’s plea offer.       After

receiving additional briefing on this issue, we now vacate the

district court’s order and remand for further proceedings.

          In his § 2255 motion, O’Quinn claimed that he received

ineffective assistance of counsel when counsel failed to inform him

of a corrected plea agreement.    He asserted that, had he seen the

corrected version, he would have pled guilty. O’Quinn submitted an

affidavit to this effect.   Counsel filed an affidavit stating that

he reviewed the corrected plea agreement with O’Quinn, but that

O’Quinn wanted to go to trial with the hope of obtaining an

acquittal on one of the charges and thereby possibly receiving a

lesser sentence.

          The district court may expand the record in a § 2255

proceeding to include letters, documents and affidavits. Raines v.

United States, 423 F.2d 526, 529-30 (4th Cir. 1970).   Unless it is

clear from the record, as expanded, that the prisoner is not

entitled to relief, § 2255 makes an evidentiary hearing mandatory.

28 U.S.C. § 2255; Raines, 423 F.2d at 529.    “[W]here the ultimate


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resolution rests on a credibility determination, an evidentiary

hearing is especially warranted.” United States v. White, 366 F.3d

291, 302 (4th Cir. 2004) (citing Raines, 423 F.2d at 530).

          In denying § 2255 relief on this issue, the district

court determined that, even if counsel’s performance was deficient

with respect to the plea offer, O’Quinn suffered no prejudice

because he failed to show that, had he seen the revised plea offer,

he would have pled guilty. In making this determination, the lower

court relied on O’Quinn’s silence during the change of plea hearing

when the court discussed scheduling O’Quinn’s trial.

          We find that O’Quinn’s silence in that setting is too

ambiguous to allow an inference of acquiescence to overcome his

affirmative     act   of   attesting       to   statements   to   the   contrary.

Rather, the conflicting statements in the affidavits submitted by

O’Quinn   and    counsel    create     a    factual    dispute    requiring   an

evidentiary hearing.       See Raines, 423 F.2d at 530.

          Accordingly, we vacate the district court’s order and

remand for further proceedings consistent with this opinion.                  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 AND REMANDED




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