                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-6485


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KEVIN NEVOYLE DICKERSON, a/k/a Hebe,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.    Samuel G. Wilson, District
Judge. (7:10-cr-00011-SGW-RSB-1; 7:12-cv-80528-SGW-RSB)


Submitted:   October 29, 2013             Decided:   November 13, 2013


Before KEENAN, DIAZ, and THACKER, Circuit Judges.


Vacated in part and remanded by unpublished per curiam opinion.


Kevin Nevoyle Dickerson, Appellant Pro Se. Donald Ray Wolthuis,
Assistant  United   States  Attorney,  Roanoke,  Virginia,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Kevin Nevoyle Dickerson, a federal prisoner, filed a

28 U.S.C. § 2255 motion contending, inter alia, that his counsel

provided ineffective assistance by advising him to reject a plea

agreement    in     favor    of    entering         a   “straight         up”    guilty         plea.

Dickerson sought to appeal the district court’s order denying

relief     on     his     motion          and       a    subsequent            order       denying

reconsideration.             We    granted           Dickerson        a    certificate            of

appealability       and     received       further       briefing         on    the     issue     of

counsel’s alleged ineffective assistance in advising Dickerson

to reject the plea offer. ∗                Because we conclude an evidentiary

hearing     was     warranted,       we    vacate        in    part       and        remand     with

instructions to grant Dickerson a hearing on this ineffective

assistance of counsel claim.

             Dickerson       was   charged          with     conspiracy         to     distribute

and possess with intent to distribute more than 1000 grams of

heroin     (Count    One),     and     attempt          to    possess      with        intent     to

distribute more than 100 grams of heroin (Count Eight).                                           He

ultimately      pleaded      guilty       without        a    plea    agreement            to   both

counts.     The district court imposed a within-Guidelines sentence

of   262    months’       imprisonment          on      each    count,          to    be      served


     ∗
       We denied a certificate of appealability as to the second
claim Dickerson raised in his § 2255 motion.



                                                2
concurrently.         On    direct      appeal,    we     affirmed     Dickerson’s

sentence.      United States v. Dickerson, 436 F. App’x 252 (4th

Cir. 2011) (unpublished).

             In his § 2255 motion, Dickerson maintains that counsel

advised him to reject the Government’s proffered plea agreement

by which Dickerson would plead guilty to Count One in exchange

for a dismissal of Count Eight, in favor of entering a “straight

up” guilty plea to both counts.                 Dickerson complains that he

“benefitted nothing by entering such a plea” and that he would

have     accepted        the     plea         agreement       absent     counsel’s

ineffectiveness.

             While    the      district       court     recognized      that   the

Government    had    not    proffered    Dickerson’s      attorney’s     affidavit

explaining her reasons for recommending a “straight up” guilty

plea, the district court found it “highly likely” that counsel

believed it was important to avoid the appellate and collateral

attack waiver customarily insisted upon by the Government in the

plea agreement.       The court also emphasized that Dickerson could

show    no   resulting     prejudice     because      under   the    conduct-based

sentencing scheme, Dickerson’s plea to Count One subsumed the

conduct alleged in Count Eight, as reflected in the concurrent

262-month sentences imposed and, therefore, “[h]is plea to count

eight did not lengthen his term of incarceration by a single

day.”

                                          3
              To    succeed      on        his       ineffective           assistance       claim,

Dickerson must show that: (1) counsel’s performance fell below

an    objective      standard         of    reasonableness             and        (2)    counsel’s

deficient      performance        was       prejudicial.               See        Strickland    v.

Washington,        466   U.S.     668,       687      (1984).          The        Supreme    Court

addressed the standard for showing ineffective assistance during

the plea bargaining stage in Lafler v. Cooper, 132 S. Ct. 1376

(2012),   and      Missouri      v.    Frye,         132   S.    Ct.       1399    (2012).      In

Lafler, the Court held that the Sixth Amendment right to counsel

applies   to       the   plea    bargaining           process        and    prejudice       occurs

when, absent deficient advice, the defendant would have accepted

a plea that would have been accepted by the court, and that “the

conviction or sentence, or both, under the offer’s terms would

have been less severe than under the judgment and sentence that

in fact were imposed.”           132 S. Ct. at 1385.

              In Frye, the Supreme Court held that a component of

the   Sixth    Amendment        right      to    counsel        in    the    plea       bargaining

context is that counsel has a duty to communicate any offers

from the Government to his client.                         132 S. Ct. at 1408.               Under

Frye, in order to show prejudice from ineffective assistance of

counsel where a plea offer has lapsed or been rejected because

of counsel’s deficient performance, a defendant must demonstrate

a reasonable probability he would have accepted the earlier plea

offer had he been afforded effective assistance of counsel.                                    Id.

                                                 4
at   1409.       Additionally,        a    defendant          must    show    that       “if    the

prosecution had the discretion to cancel it or if the trial

court had the discretion to refuse to accept it, there is a

reasonable       probability       neither           the    prosecution      nor    the     trial

court    would    have     prevented        the       offer    from    being       accepted     or

implemented.”        Id. at 1410.

               In § 2255 proceedings, “[u]nless 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.”

§ 2255(b).        An evidentiary hearing in open court is required

when a movant presents a colorable Sixth Amendment claim showing

disputed       facts      beyond     the     record           or     when    a     credibility

determination        is    necessary        in       order     to    resolve       the    issue.

United States v. Witherspoon, 231 F.3d 923, 926-27 (4th Cir.

2000).

               In its response, the Government contends, as it did

below,    that,      by    pleading       guilty           without    a     plea    agreement,

Dickerson preserved all of his appellate rights and all of his

rights    to     collaterally        attack          his    convictions       and    sentence.

Arguing that it was objectively reasonable for defense counsel

to    recommend        this        route,        the        Government        asserts          that

“[d]eference must be given this strategic choice.”                               With respect

                                                 5
to prejudice, the Government asserts that the calculus of the

sentencing was unaffected.             Furthermore, while it concedes that

an   additional       conviction     could       have        collateral      consequences,

even    where    the    sentences      run       concurrently,          it   argues      that

Dickerson cannot show there was a reasonable probability that he

would have accepted the plea offer, thus failing to meet the

required showing of prejudice.

            We       conclude   that     the          district     court        abused       its

discretion      in    failing   to     conduct         an     evidentiary       hearing       on

Dickerson’s      ineffective     assistance            of    counsel    claim.          As    to

prejudice, we conclude that Dickerson made a colorable showing

that, absent counsel’s advice, he would have accepted a plea

that    would    have    been   accepted         by    the     court,     and    that    “the

conviction or sentence, or both, under the offer’s terms would

have been less severe than under the judgment and sentence that

in fact were imposed.”          Lafler, 132 S. Ct. at 1385.

            With respect to the reasonableness of counsel’s advice

to Dickerson to reject the Government’s plea offer, the district

court    was     presented      with     only          the     Government’s        unsworn,

unauthenticated assertion that Dickerson had been offered a plea

agreement that contained a waiver of the right to appeal.                                    The

Government did not present any supporting affidavits.                              A close

look at the Government’s response indicates that avoiding the

appellate waiver would have been the only strategic reason to

                                             6
reject   the    Government’s        offer    to    plead     guilty       to    Count     One.

However, there is nothing in the record to support a finding

that the government conditioned its offer on such a waiver, that

counsel deemed it important in Dickerson’s case to avoid waiver

of the right to appeal, or that counsel’s advice to reject the

offer was on that basis.                   While counsel may have reasonably

believed that the waiver was reason enough to reject the plea

offer and plead straight up, there is no affidavit from counsel

in the record, and the district court was left to guess at

counsel’s motives and strategy, if any.                         The district court’s

determination        that    counsel’s      advice      to   forgo    a    written        plea

agreement      was    a     strategic      one     is    a   factual       determination

requiring a credibility determination, or at least the receipt

of evidence outside of the present record; thus, the district

court    erred        in      not     ordering          an     evidentiary         hearing.

Witherspoon, 231 F.3d at 925-27.

            Accordingly, we vacate in part the district court’s

dismissal      of    Dickerson’s       §    2255     motion.         We        remand     with

instructions to grant Dickerson an evidentiary hearing on his

claim that counsel was ineffective in advising him to reject the

Government’s        written    plea     offer      to    one    count      in     favor    of

entering a straight up guilty plea to two counts.                              We dispense

with oral argument because the facts and legal contentions are



                                             7
adequately   presented   in   the   materials   before   this   court   and

argument would not aid the decisional process.


                                          VACATED IN PART AND REMANDED




                                     8
