                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-6300



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DAVID WAYNE STOUT,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-02-202; CA-04-374-1)


Submitted:   February 3, 2006              Decided:   March 6, 2006


Before TRAXLER, KING, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


David Wayne Stout, Appellant Pro Se. Randall Stuart Galyon,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           David Wayne Stout appeals from the district court’s order

adopting the report and recommendation of the magistrate judge and

denying Stout’s 28 U.S.C. § 2255 (2000) motion.                We previously

granted a certificate of appealability on Stout’s claim that he

received ineffective assistance of counsel when his attorney failed

to advise him regarding the admissibility of certain audiotapes.

The parties have now filed additional briefs.*                 We vacate and

remand to the district court for further proceedings.

            In his sworn statements in district court, Stout, who was

convicted after a jury trial of conspiracy to possess with intent

to distribute marijuana, asserted that he accompanied his attorney

to the Government’s office to listen to the audiotapes in question

prior to trial.      The audiotapes contained conversations between

Stout and his co-conspirators.         Stout was of the opinion that the

audiotapes were not admissible because there was no court order and

he did not consent to the recording.           He informed his attorney

about    his   analysis,   and   his    attorney   did   not    correct   his

conclusions. Based on his belief that the tapes were inadmissible,



     *
      In his filings following our grant of a certificate of
appealability, Stout attempts to expand the issue on appeal to add
claims that his attorney actively tried to engineer a guilty plea
by failing to investigate the tapes and that the Government
improperly edited the tapes at trial. Because no certificate of
appealability has been granted with regard to these issues, we are
without jurisdiction to consider them.      See 28 U.S.C. § 2253
(2000).

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Stout decided to reject the Government’s plea offer and go to

trial.    He then fired his attorney and obtained new counsel.                  The

tapes, which were allegedly clearly admissible, were admitted at

trial without objection.            Stout asserted that, had his attorney

properly advised him regarding the admissibility of the tapes, he

would have pled guilty, because he “would have been insane to

proceed to trial knowing this evidence could have been used against

him.”

              The Government filed a response in district court and

attached an affidavit from Stout’s trial counsel. Counsel asserted

that he advised Stout about the admissibility of the tapes.                     The

magistrate judge issued a report, recommending denying Stout’s

§ 2255 motion. Specifically, the magistrate judge found that, even

assuming that counsel unreasonably failed to advise Stout regarding

the admissibility of the tapes, Stout did not show why he did not

plead guilty once he discovered that the tapes were admissible.

              Stout    objected,     asserting    that   his   attorney      never

answered      his   question   as    to   the    admissibility   of    the     tape

recordings, and that, after he replaced his attorney and discovered

that the audiotapes were admissible, the plea offer was removed

from    the   table.     The   district    court    adopted    the    report    and

recommendation without discussion.

              “Unless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief, the


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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.    An evidentiary hearing in

open court is required when a movant presents a colorable Sixth

Amendment claim showing disputed material facts and a credibility

determination is necessary in order to resolve the issue.                 See

United States v. Witherspoon, 231 F.3d 923, 925-27 (4th Cir. 2000);

see also Gray v. Spillman, 925 F.2d 90, 95 (4th Cir. 1991) (holding

that summary judgment may not be granted when there is opposing

sworn testimony, even when one side’s story is “hard to believe.”).

           In order to succeed on a claim of ineffective assistance,

a defendant must show that his counsel’s performance fell below an

objective standard of reasonableness and that counsel’s deficient

performance was prejudicial.        Strickland v. Washington, 466 U.S.

668, 687 (1984).    Under the first prong of Strickland, there is a

strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.            Id. at 689.        To

satisfy   the   second    prong,   the   defendant   must   show   that   his

attorney’s errors altered the outcome of the proceeding.             Id. at

694.

           We find that Stout’s assertions, if believed, state a

colorable claim that he was denied effective assistance of counsel.

The Government disputes the factual truth of Stout’s story.           Thus,

the district court erred in resolving the factual disputes and


                                   - 4 -
deciding the case without a hearing.   Accordingly, we vacate this

portion of the district court’s order and remand for further

proceedings.   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




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