                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 11-6711


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KENNETH MITCHELL,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:03-cr-00351-CCB-4; 1:08-cv-01723-CCB)


Submitted:   February 9, 2012               Decided:   June 22, 2012


Before GREGORY, SHEDD, and DAVIS, Circuit Judges.


Vacated in part and remanded by unpublished per curiam opinion.


Kenneth Mitchell, Appellant Pro Se. James G. Warwick, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Kenneth    Mitchell,       a    federal      prisoner,        filed       a    28

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

other defects, his counsel provided ineffective assistance by

failing    to     fully    convey    his       plea     options    to    him.        Mitchell

sought     to    appeal    the     district        court’s     order        dismissing        his

motion as well as the district court’s refusal to hold a hearing

on   his        motion.      We     granted           Mitchell     a     certificate           of

appealability       and    received    further          briefing       on    the    issue      of

counsel’s        alleged    failure    to          fully   convey        Mitchell’s           plea

options.         We conclude that the district court’s denial of a

hearing was an abuse of its discretion.                      Therefore, we vacate in

part and remand with instructions to grant Mitchell a hearing on

his ineffective assistance of counsel claim.

                The Government has confirmed that it offered two plea

agreements to Mitchell:             one that required Mitchell to cooperate

and one that did not require Mitchell’s cooperation.                                 Mitchell

claims     that     his    counsel     only         communicated        the       offer   with

cooperation to him and told him that his options were to take

the plea agreement or go to trial.                      Mitchell attempted to take

the plea agreement, but his cooperation was deemed insufficient.

Thus,    Mitchell     went    to    trial.          A   jury     found      him    guilty       of

conspiracy to distribute and possess with intent to distribute

cocaine in violation of 21 U.S.C. § 846 (2006).                               Mitchell was

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sentenced to 235 months in prison followed by five years of

supervised release.

              In    an    affidavit      attached         to   his    § 2255       motion,

Mitchell      swore      that    he   would       have    foregone    trial       had    his

attorney properly advised him that he could have pleaded guilty

without cooperation.              The district court dismissed Mitchell’s

claim and found instead that Mitchell pursued cooperation with

the   advice       of    counsel,      but        apparently    failed      to     provide

sufficient cooperation.               The court did not make the critical

finding of whether Mitchell’s counsel conveyed the Government’s

non-cooperation plea agreement to Mitchell.

              The failure of counsel to communicate a plea offer may

constitute     ineffective         assistance        of   counsel.       See     Jones     v.

Murray, 947 F.2d 1106, 1110-11 (4th Cir. 1991); see also United

States   v.    Blaylock,         20   F.3d    1458,       1465-66    (9th   Cir.        1994)

(collecting cases).             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 and a credibility determination

is necessary in order to resolve the issue.                          United States v.

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Witherspoon,         231   F.3d     923,       925-27       (4th     Cir.     2000);       see   also

Raines v. United States, 423 F.2d 526, 530 (4th Cir. 1970).                                       We

review    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).

               We can find nothing in the district court record to

rebut Mitchell’s claim that his attorney failed to advise him of

the possibility of pleading guilty without cooperation.                                      Nor is

Mitchell’s claim so “palpably incredible or patently frivolous”

that summary dismissal was warranted.                               Because an evidentiary

hearing       was    required      in     order        to   make        the   factual      findings

necessary       to    rule    on    Mitchell’s          § 2255          motion,      the   district

court’s failure to hold one was an abuse of its discretion.

               Accordingly, we vacate in part the district court’s

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

instructions to grant Mitchell an evidentiary hearing on his

claim    that       counsel     failed        to   advise         him    of   the    Government’s

offer of a plea agreement without cooperation.                                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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