                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-6629


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JAMAR MARVIN SIMMONS, a/k/a Mar,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of Maryland, at Baltimore.
George L. Russell, III, District Judge. (1:13-cr-00061-GLR-1; 1:14-cv-03911-GLR)


Submitted: March 28, 2019                                         Decided: April 2, 2019


Before MOTZ, WYNN, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Robert L. Sirianni, Jr., BROWNSTONE, P.A., Winter Park, Florida, for Appellant.
Jason Daniel Medinger, Assistant United States Attorney, Brandon Keith Moore,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

         Jamar Marvin Simmons appeals the district court’s order denying relief on his 28

U.S.C. § 2255 (2012) motion. We granted a certificate of appealability on Simmons’

claim that the district court erred in rejecting, without an evidentiary hearing, Simmons’

claim that his attorney was ineffective in failing to consult with Simmons regarding

Simmons’ right to appeal. For the reasons that follow, we vacate the district court’s order

and remand for an evidentiary hearing.

         We review a district court’s legal conclusions de novo and its findings of fact in

denying a § 2255 motion for clear error. United States v. MacDonald, 911 F.3d 723, 797

(4th Cir. 2018). A claim of ineffective assistance of counsel presents a mixed question of

law and fact that we review de novo. United States v. Ragin, 820 F.3d 609, 617 (4th Cir.

2016).

         “Unless 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). “When the district court denies § 2255 relief without an

evidentiary hearing, the nature of the court’s ruling is akin to a ruling on a motion for

summary judgment,” and the facts must be considered “in the light most favorable to the

§ 2255 movant.” United States v. Poindexter, 492 F.3d 263, 267 (4th Cir. 2007). An

evidentiary hearing is required when the movant presents a colorable Sixth Amendment

claim showing disputed facts beyond the record or when a credibility determination is



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necessary to resolve the issue. See United States v. Witherspoon, 231 F.3d 923, 926-27

(4th Cir. 2000).

       To prevail on a claim of ineffective assistance of counsel, a prisoner must show

that “counsel’s performance was deficient” and that “the deficient performance

prejudiced the defense.”      Strickland v. Washington, 466 U.S. 668, 687 (1984).

“[C]ounsel has a constitutionally imposed duty to consult with the defendant about an

appeal when there is reason to think either (1) that a rational defendant would want to

appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this

particular defendant reasonably demonstrated to counsel that he was interested in

appealing.” Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000); see also United States v.

Peak, 992 F.2d 39, 42 (4th Cir. 1993). A court will “presum[e] prejudice with no further

showing from the defendant of the merits of his underlying claims when the violation of

the right to counsel rendered the proceeding presumptively unreliable or entirely

nonexistent.” Flores-Ortega, 528 U.S. at 484. Thus, “when counsel’s constitutionally

deficient performance deprives a defendant of an appeal that he otherwise would have

taken, the defendant has made out a successful ineffective assistance of counsel claim

entitling him to an appeal.” Id. Any inquiry into the potential merits of such an appeal is

unnecessary; a defendant need only “demonstrate that, but for counsel’s deficient

conduct, he would have appealed.” Id. at 486; accord Peak, 992 F.2d at 42. This rule

applies even where a defendant’s plea agreement contains a waiver of appellate rights.

Poindexter, 492 F.3d at 271-73.



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       Here, the district court denied Simmons’ § 2255 motion because trial counsel’s

statements that Simmons, through his parents, did not wish to appeal directly contradicted

Simmons’ assertions otherwise. We conclude, however, that the district court erred in

deciding this issue on pleadings alone, crediting trial counsel’s statements in the face of

Simmons’ verified § 2255 motion. See § 2255(b); Poindexter, 492 F.3d at 267; Payne v.

Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (“[S]ummary judgment cannot be used to

resolve swearing contests between litigants.”). Furthermore, given that the district court

varied well above the Sentencing Guidelines range and an appeal of Simmons’ sentence

would not have been barred by his appellate waiver, it is likely that a rational defendant

would have appealed the sentence.

       Because resolution of the ineffectiveness claim turns on credibility, we vacate the

district court’s order and remand for an evidentiary hearing to determine whether

Simmons’ trial counsel was ineffective in failing to consult with Simmons regarding his

right to appeal. 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 AND REMANDED




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