                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-7711


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DARRYL BOYNES, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   James R. Spencer, District
Judge. (3:05-cr-00313-JRS-1; 3:10-cv-00716-JRS)


Submitted:   June 1, 2012                 Decided:   June 13, 2013


Before KING, GREGORY, and AGEE, Circuit Judges.


Dismissed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Darryl Boynes, Jr., Appellant Pro Se. Peter Sinclair Duffey,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Darryl Boynes, Jr., seeks to appeal the district court’s

order denying relief on his 28 U.S.C. § 2255 motion.                      See United

States v. Boynes, No. 3:05-cr-00313 (E.D. Va. Oct. 20, 2011).

The order is not appealable unless a circuit justice or judge

issues     a     certificate     of    appealability.             See    28     U.S.C.

§ 2253(c)(1)(B).          We hereby grant a certificate of appealability

on the issue of whether the district court erred in dismissing,

without an evidentiary hearing, Boynes’s claim that his lawyer

Mark Tyndall rendered ineffective assistance due to a conflict

of interest (the “Sixth Amendment claim”).

      The premise of the Sixth Amendment claim is that, because

of   Tyndall’s     friendship       with    former      defense   counsel      Jeffrey

Everhart, Tyndall refused to allow Boynes to testify at a July

31, 2006 post-trial hearing in support of his contention that

Everhart       waived    Boynes’s   right      to   a   jury   trial    without    his

knowledge and consent.           The district court determined that the

jury waiver was valid, and, on direct appeal, we affirmed.                         See

United States v. Boynes, 515 F.3d 284 (4th Cir. 2008).                        In these

subsequent       § 2255     proceedings,       Boynes     alleges      that   he   had

insisted to Tyndall “that he wanted to explain to the court that

. . . he never discussed [with Everhart] waiving his right to

jury trial.”            Informal Br. of Appellant 12.               Boynes further

asserts that he was informed by Tyndall, “at the end of the

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hearing on July 31, 2006,” that Tyndall “could not pursue the

issue to the district court because of his friendship and close

relationship with [Everhart].”           Id. at 12, 15.

       Proving the Sixth Amendment claim will be no easy task for

Boynes.      In    order    to   avoid   having    to       demonstrate     prejudice,

Boynes must show that Tyndall labored under an “actual conflict

of interest.”       See Cuyler v. Sullivan, 446 U.S. 335 (1980).                     As

we have explained,

       [t]he Sullivan standard requires a showing that (1)
       petitioner’s lawyer operated under a “conflict of
       interest” and (2) such conflict “adversely affected
       his lawyer’s performance.”  446 U.S. at 348.  If the
       petitioner makes this showing, prejudice is presumed
       and nothing more is required for relief.  See id. at
       349-50.

United States v. Nicholson, 611 F.3d 191, 205 (4th Cir. 2010).

Absent an actual conflict of interest, the usual standard for

Sixth Amendment ineffective assistance claims applies.                          Under

that   standard,     Boynes      would    have    to    show     “‘that      counsel’s

performance was deficient’ and ‘that the deficient performance

prejudiced the defense.’”            Nicholson, 611 F.3d at 205 (quoting

Strickland v. Washington, 466 U.S. 668, 687 (1984)).

       Despite the difficulties confronting Boynes in his effort

to   prove   the    Sixth    Amendment    claim,       we    cannot   say    that   his

“motion and the files and records of the case conclusively show

that [he] is entitled to no relief.”                   See 28 U.S.C. § 2255(b).

Accordingly, an evidentiary hearing is required.                          See, e.g.,

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United   States     v.   Magini,      973   F.2d   261,     264    (4th   Cir.   1992)

(“When a colorable Sixth Amendment claim is presented, and where

material facts are in dispute involving inconsistencies beyond

the record, a hearing is necessary.”).

       We therefore vacate the district court’s judgment as to the

Sixth Amendment claim and remand for an evidentiary hearing on

that   claim   only.        As   to    Boynes’s     other       claims,   we    deny   a

certificate    of    appealability          and    dismiss       the   appeal.         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.



                                                                  DISMISSED IN PART,
                                                                    VACATED IN PART,
                                                                        AND REMANDED




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