                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-7498



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


HASSAAN HAAKIM RASHAAD,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.    Lacy H. Thornburg,
District Judge. (3:01-cr-00195-1; 3:04-cv-00500)


Submitted:   October 19, 2007             Decided:   November 5, 2007


Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Hassaan Haakim Rashaad, Appellant Pro Se.    Amy Elizabeth Ray,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Hassaan Haakim Rashaad appeals from the district court’s

order denying relief on his motion filed under 28 U.S.C. § 2255

(2000). We previously granted a certificate of appealability as to

Rashaad’s claim that his attorney provided ineffective assistance,

resulting in Rashaad being denied the right to testify in his

defense.1        After receiving additional briefing on this issue, we

now vacate the district court’s order and remand for further

proceedings.

                 A criminal defendant has a fundamental constitutional

right to testify on his or her own behalf at trial.                     United States

v. Midgett, 342 F.3d 321, 325 (4th Cir. 2003).                 This right, derived

from       various    constitutional        provisions,      “reaches     beyond    the

criminal trial.”            Rock v. Arkansas, 483 U.S. 44, 51 n.9 (1987);

Reinert v. Larkins, 379 F.3d 76, 95 (3d Cir. 2004) (considering

habeas petitioner’s ineffective assistance of counsel claim based

on his contention that his counsel violated his constitutional

right       to    testify     at    a   pre-trial    suppression     hearing).        A

defendant’s          waiver    of    this   right,    like    that   of    any     other

constitutional right, is “personal” and must be made voluntarily

and knowingly.           Sexton v. French, 163 F.3d 874, 881 (4th Cir.

1998); Brown v. Artuz, 124 F.3d 73, 77-78 (2d Cir. 1997).



       1
      We denied a certificate of appealability                       and   dismissed
Rashaad’s appeal as to his remaining claims.

                                            - 2 -
           In     his   §   2255       motion    and   the   accompanying       sworn

affidavit, Rashaad claimed counsel was ineffective when he failed

to advise Rashaad of his right to testify at the pre-trial hearing

on his motion to dismiss the indictment, which was predicated on

the immunity agreement into which Rashaad had entered with the

Government.       In his affidavit, Rashaad asserted that, had he

properly   been    advised       and   allowed    to   testify,   he    would    have

provided testimony refuting the Government’s evidence establishing

Rashaad’s breach of the immunity agreement. The Government did not

file a response to Rashaad’s motion.              The district court summarily

dismissed the claim, finding Rashaad had not established his

attorney had failed to advise him of his right to testify at trial.

The court, however, did not address Rashaad’s claim that he had not

been advised regarding his right to testify at the pre-trial

hearing.

           Unless it is clear from the pleadings, files, and records

that the prisoner is not entitled to relief, § 2255 makes an

evidentiary hearing mandatory.            28 U.S.C. § 2255; Raines v. United

States, 423 F.2d 526, 529 (4th Cir. 1970).               The district court may

expand the record to include letters, documents, and affidavits.

Raines, 423 F.2d at 529-30.              A district court’s decision as to

whether    a    hearing     is    mandatory      under   §   2255      and   whether

petitioner’s presence is required at the hearing is reviewed for

abuse of discretion.             Id. at 530 (citing Machibroda v. United


                                         - 3 -
States, 368 U.S. 487 (1962)).          Notwithstanding the court’s ability

to expand the record and its wide discretion in the matter,

“[t]here will remain, however, a category of petitions, usually

involving credibility, that will require an evidentiary hearing in

open court.”       Id.

             Under Strickland v. Washington, 466 U.S. 668, 694 (1984),

in order to prove ineffective assistance of counsel based on his

claim that his attorney prevented him from exercising his right to

testify at the pre-trial hearing, Rashaad must show both that his

attorney violated his right to testify and that his testimony had

a “reasonable probability” of changing the outcome.                  In denying

§ 2255 relief on this issue, the district court construed Rashaad’s

claim as asserting Rashaad had been denied his right to testify at

trial    —   not   at    the   pre-trial   hearing.     This   overly    narrow

construction       of    Rashaad’s   claim,   coupled   with   the   fact   that

Rashaad’s affidavit stands unrefuted on the record,2 leads us to

conclude the district court’s order as to this issue must be

vacated.




     2
      Although far from clear, it appears plausible that, had
Rashaad been permitted to testify at the pre-trial hearing on the
motion to dismiss and had he testified in conformity with the facts
averred in his affidavit, the result of the hearing might have been
different. However, as the district court has yet to consider this
issue, our present disposition should not be construed as an
indication that we have formulated any view regarding the
appropriate outcome of the proceedings on remand.

                                      - 4 -
           We vacate the district court’s order denying relief on

Rashaad’s claim that counsel was ineffective because he prevented

Rashaad from testifying at the pre-trial hearing, and remand for

further   proceedings   consistent   with   this   opinion.    We   deny

Rashaad’s motion for default judgment.         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




                                - 5 -
