UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-7878

MARCUS HAWTHORNE BANKS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-90-351-A, CA-97-411-AM)

Submitted: October 20, 1998

Decided: November 23, 1998

Before WIDENER, MURNAGHAN, and ERVIN, Circuit Judges.

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Dismissed in part, vacated in part, and remanded by unpublished per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

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COUNSEL

Marcus Hawthorne Banks, Appellant Pro Se. Charles A. Beamon,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Marcus Hawthorne Banks appeals the district court's orders deny-
ing relief on his 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998)
motion. While serving a term of imprisonment at Lorton Reformatory
for armed robbery, Banks pled guilty to possession with intent to dis-
tribute heroin,1 and possession of heroin by a prisoner.2 He was sen-
tenced to serve a total of 168 months' imprisonment.

In his sworn § 2255 motion and attached affidavit, both signed
under penalty of perjury, Banks asserted, among other things, several
claims of ineffective assistance of counsel.3 Finding all other claims
without merit, the district court ordered the Government to respond
only to Banks's remaining claim that his trial attorney failed to com-
ply with Banks's request to appeal his sentence. In its response, the
Government included an affidavit from Banks's trial attorney, R.
Ramsey Maupin, which stated that after Banks was sentenced, he
spoke with Banks about his right to appeal and Banks did not desire
to appeal at that time; nor did Banks thereafter contact him to note an
appeal on his behalf. The court notified Banks that he had twenty
days to respond to the Government's dispositive motion with addi-
tional sworn evidence or affidavits. Because Banks did not respond
to the motion, the court only considered the statements in Maupin's
affidavit and denied Banks's § 2255 motion without an evidentiary
hearing.

As part of his motion for reconsideration, Banks submitted a per-
sonal affidavit in which he reasserted that he had requested counsel
to file an appeal and copies of correspondence written to Maupin
inquiring about the status of his appeal. The court found that Banks
_________________________________________________________________
1 See 21 U.S.C. § 841(a)(1) (1994).
2 See Va. Code Ann. § 53.1-203(6) (Michie 1994 & Supp. 1997), as
assimilated by 18 U.S.C.A. § 13 (West Supp. 1998).
3 Banks has waived appellate review of the following claims for his
failure to assert them on appeal: (1) that he did not have an opportunity
to review his presentence report; and (2) that the court accepted his plea
without an adequate factual basis. See 4th Cir. R. 34(b).

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had not submitted these materials in a timely manner and denied the
motion for reconsideration and Banks's request for a certificate of
appealability.4

To establish ineffective assistance of counsel, Banks must show
that counsel's performance fell below objective standards of reason-
ableness and that there is a reasonable probability that, but for coun-
sel's unprofessional errors, the result of the proceeding would have
been different.5 In a guilty plea context, to establish prejudice Banks
must show there is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty.6 Failure to establish both
deficient performance and prejudice defeats an ineffective assistance
of counsel claim.7 Whether counsel's performance was constitution-
ally sufficient is a mixed question of law and fact. 8

Banks contends that counsel was ineffective for failing to request
that his current sentence be imposed to run concurrently with his
undischarged term of imprisonment. The sentencing guidelines in
effect when Banks was sentenced provided that: "If the instant
offense was committed while the defendant was serving a term of
imprisonment (including work release, furlough, or escape status), the
sentence for the instant offense shall be imposed to run consecutively
to the unexpired term of imprisonment."9 We have held that the dis-
trict court has the discretion to depart from the guidelines and impose
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4 Although Banks's notice of appeal was timely as to both the denial
of the § 2255 motion and the denial of his motion for reconsideration,
because he specifically designated that he was appealing the court's June
16, 1997, order denying his § 2255 motion, he is bound by this designa-
tion. Accordingly, we are without jurisdiction to review the order deny-
ing his motion for reconsideration. See Foster v. Tandy Corp., 828 F.3d
1052, 1059 (4th Cir. 1987).
5 See Strickland v. Washington, 466 U.S. 668, 687-94 (1984).
6 See Hill v. Lockhart, 474 U.S. 52, 59 (1985).
7 See Strickland, 466 U.S. at 687.
8 Id. at 698.
9 See U.S. Sentencing Guidelines Manual § 5G1.3 (1990). Notably, the
version of the sentencing guidelines in effect when Banks filed his
§ 2255 motion also calls for a consecutive sentence. Compare USSG
§ 5G1.3(a) (1995).

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a concurrent sentence, but only if the court follows the appropriate
procedures for departing and properly justifies its departure.10

Banks suggests that the district court wrongly believed that it
lacked authority to depart. However, the record reveals that the dis-
trict court considered a departure based on the postponement of
Banks' parole eligibility for his robbery conviction, but rejected the
idea because of this court's precedent.11 Therefore, Banks was not
prejudiced by his attorney's failure to request a departure.12

Next, Banks contends that his counsel was ineffective for failing to
object to his being sentenced as a career criminal. This contention is
directly belied by the record. At sentencing, Banks's counsel argued
against the application of the career criminal status on the basis that
several of the burglaries listed in Banks's presentence report were not
of residential dwellings. In overruling this objection, the court sen-
tenced Banks as a career criminal, citing three other burglary-type
convictions that met the residential dwelling criteria.13

Moreover, Banks was properly sentenced as a career offender. A
defendant should be classified as a career offender if: (1) he was eigh-
teen or older when the instant offense was committed; (2) the instant
offense was a crime of violence; and (3) the defendant has at least two
prior felony convictions for a crime of violence. 14 Banks was over the
age of eighteen when he committed the instant offense, and the court
properly classified the instant offense, and two other prior convic-
tions, attempted breaking and entering and armed robbery, as crimes
of violence.

Banks challenges the voluntariness of his plea by asserting that he
was not informed of the consequences of his plea. Banks also con-
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10 See United States v. Rogers, 897 F.2d 134, 137 (4th Cir. 1990).

11 See United States v. Wright, 924 F.2d 545, 549 (4th Cir. 1991)
(rejecting postponement of parole as an appropriate grounds for depar-
ture for a career offender).
12 See United States v. Bayerle , 898 F.2d 28, 30-31 (4th Cir. 1990).
13 See USSG § 4B1.2(1).
14 See USSG § 4B1.1.

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tends his plea was involuntary because, prior to sentencing but after
he had entered his plea, his attorney erroneously advised him on key
sentencing issues.

Our review of the record reveals that Banks was fully informed of
the consequences of his guilty plea. The court personally addressed
Banks, ensuring that he understood the nature of the charges to which
the plea was offered, the maximum sentences available, the applica-
bility of the federal sentencing guidelines, and whether Banks under-
stood all the rights he was forfeiting by pleading guilty.15 Based on
the assertions made in Banks's Rule 11 hearing, we find that Banks
was fully informed of the consequences of his plea, which was given
freely and intelligently. Thus, neither his displeasure with the length
of his incarceration16 nor any erroneous sentencing advice rendered
after Banks entered his guilty plea will affect the voluntariness of his
plea.

Lastly, Banks claims that his attorney was ineffective for failing to
appeal his sentence, despite being directed to do so. We have previ-
ously held that "a criminal defense attorney's failure to file a notice
of appeal when requested by his client deprives the defendant of his
Sixth Amendment right to the assistance of counsel, notwithstanding
that the lost appeal may not have had a reasonable probability of
success."17 Unless it is clear from the pleadings, files, and records that
the prisoner is not entitled to relief, § 2255 makes an evidentiary hear-
ing mandatory.18 The district court's determinations as to whether to
hold a hearing under § 2255 and whether petitioner is required to be
present at the hearing are reviewed for abuse of discretion.19 Notwith-
standing the court's wide discretion in the matter,"[t]here will
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15 Fed. R. Crim. P. 11; United States v. DeFusco, 949 F.2d 114, 116
(4th Cir. 1991).
16 See United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992)
(recognizing that court's informing defendant of possible sentence cor-
rects any earlier advice given by counsel).
17 United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993).
18 See 28 U.S.C.A. § 2255; Raines v. United States, 423 F.2d 526, 529
(4th Cir. 1970).
  5130 35 4 19 See Raines, 423 F.2d at 530.

                    5
remain, however, a category of petitions, usually involving credibil-
ity, that will require an evidentiary hearing in open court."20 "When
the issue is one of credibility, resolution on the basis of affidavits can
rarely be conclusive. . . ."21

There is genuine issue of material fact as to whether Banks
requested his attorney to appeal his sentence. In his sworn § 2255
motion and accompanying affidavit, also sworn under penalty of per-
jury, Banks outlined the specific facts supporting this claim: (1) that
immediately after sentencing, he told his attorney he wished to appeal
his sentence; (2) that after sentencing, his attorney never visited him
in the holding area; and (3) that despite numerous attempts, neither
he nor other family members were able to speak with his attorney to
review the status of his appeal.22 Meanwhile, Banks's trial attorney
stated in his affidavit that when he spoke with Banks after the sen-
tencing hearing, Banks did not want to appeal his sentence and never
contacted him thereafter to note an appeal. Because the sworn evi-
dence on this issue is conflicting, the district court should have con-
ducted a hearing before denying this aspect of Banks's § 2255 motion.23

Because we find that Banks was improperly denied the opportunity
to present this Sixth Amendment claim, we conclude he "has made a
substantial showing of the denial of a constitutional right."24 Accord-
ingly, we grant a certificate of appealability on this issue, vacate that
portion of the district court's order, and remand for the district court
to conduct further proceedings on the issue. For the reasoning dis-
cussed above, we deny a certificate of appealability and dismiss the
appeal as to all of Banks's other claims.
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20 Id.
21 Id.

22 See Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (holding
that a verified complaint is the equivalent of an opposing affidavit for
summary judgment purposes).
23 See Becton v. Barnett, 920 F.2d 1190, 1194 (4th Cir. 1990) (finding
that petitioner's allegation that his attorney failed to file a notice of
appeal as instructed required remand for evidentiary hearing).

24 28 U.S.C.A. § 2253 (West Supp. 1998).

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We dispense with oral argument because the facts and legal conten-
tions 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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