                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-6176


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARVIN SUNTATE MOBLEY,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.    Robert J. Conrad,
Jr., District Judge.   (3:09-cr-00189-RJC-DCK-3; 3:13-cv-00571-
RJC)


Submitted:   February 24, 2017            Decided:   March 2, 2017


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


Vacated in part and remanded with instructions; dismissed in
part by unpublished per curiam opinion.


Marvin Suntate Mobley, Appellant Pro Se.     Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Marvin        Suntate        Mobley,      a     federal        prisoner,    filed    a

28 U.S.C. § 2255 (2012) motion, contending, among other claims,

that trial counsel rendered ineffective assistance in various

ways prior to his jury trial.                   Mobley has noted an appeal from

the district court’s order denying relief on his § 2255 motion.

On   November          4,   2016,     we   granted         Mobley    a    certificate    of

appealability as to the following issues:                           (1) whether defense

counsel rendered ineffective assistance in advising Mobley that,

if he went to trial and was convicted, a mandatory life sentence

could   not       be    imposed      because    his       1997   South    Carolina   state

conviction under the Youthful Offender Act could not be used to

support an enhanced sentence; and (2) whether defense counsel

rendered ineffective assistance in failing to explain to Mobley

prior to trial that the Government could use evidence in the

Fed. R. Evid. 404(b) notice against him at trial.                                 We also

denied a certificate of appealability as to all remaining issues

and directed the Government to file a response addressing the

issues upon which the certificate of appealability was granted.

     In response, the Government filed a motion to remand in

which   it    requests        that    this     court      remand    for   an   evidentiary

hearing      as   to    the   two     issues       upon    which    the   certificate    of

appealability was granted.                   Mobley joins in the Government’s



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motion to remand.            He also has filed a motion for leave to

supplement and a supplement to his § 2255 motion.

      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 to resolve the issue.                         See United

States v. Witherspoon, 231 F.3d 923, 925–27 (4th Cir. 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    record     —    including      the    affidavits

proffered by Mobley and by defense counsel — and the parties’

submissions       on   appeal    convinces     us   that     the   district     court

abused its discretion in denying relief on Mobley’s ineffective

assistance claims that were the subject of the November 4 order

without holding an evidentiary hearing.                   Accordingly, we vacate

in part the district court’s denial of relief on Mobley’s § 2255

motion, grant the Government’s motion to remand, and remand with

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instructions       to      grant    Mobley       an        evidentiary      hearing      on   his

claims   that      trial     counsel      rendered           ineffective      assistance       in

advising Mobley that, if he went to trial and was convicted, a

mandatory life sentence could not be imposed because his 1997

South Carolina state conviction under the Youthful Offender Act

could not be used to support an enhanced sentence and failing to

explain to Mobley prior to trial that the Government could use

evidence in the Rule 404(b) notice against him at trial.

     Affording          Mobley’s        motion       for     leave    to    supplement        and

supplement liberal construction in light of his pro se status,

see In re Under Seal, 749 F.3d 276, 290 (4th Cir. 2014), we

construe the motion and supplement as a motion to expand the

certificate          of     appealability              granted         by       this      court.

A certificate         of     appealability            will      not    issue         absent    “a

substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2) (2012).                       When the district court denies

relief   on    the      merits,     a    prisoner          satisfies     this    standard      by

demonstrating        that     reasonable             jurists     would      find       that   the

district      court’s      assessment       of        the    constitutional          claims    is

debatable     or     wrong.         Slack    v.       McDaniel,       529    U.S.      473,   484

(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).

When the district court denies relief on procedural grounds, the

prisoner must demonstrate both that the dispositive procedural

ruling   is    debatable,          and   that        the    motion    states     a     debatable

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claim of the denial of a constitutional right.              Slack, 529 U.S.

at 484-85.    We conclude that Mobley fails to make the requisite

showing.

     Accordingly,     we     deny    Mobley’s   motion     to      expand     the

certificate of appealability and dismiss the appeal in part.

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 IN PART AND REMANDED WITH INSTRUCTIONS;
                                                   DISMISSED IN PART




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