                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-6367


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES DALE EVANS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.    Terry L. Wooten, District Judge.
(4:04-cr-00140-TLW-1; 4:08-cv-70011-TLW)


Submitted:   March 10, 2011                   Decided:   May 6, 2011


Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


James Dale Evans, Appellant Pro Se.       William E. Day, II,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              James      Dale    Evans       appeals         from      the   district       court’s

order granting summary judgment to the government and denying

relief on his 28 U.S.C.A. § 2255 (West Supp. 2010) motion, in

which    he   asserted         four       claims       of    ineffective          assistance      and

challenged his sentence on Fifth and Sixth Amendment grounds.

We    previously      granted         a    certificate           of    appealability        on    the

issue of whether the district court abused its discretion in

denying,      without      an       evidentiary             hearing,     Evans’      claim       that

counsel was ineffective in failing to explain adequately the

government’s offer of a plea agreement and the risks of going to

trial (Claim One).              We denied a certificate of appealability as

to Evans’ remaining claims, and dismissed the appeal of those

claims.       The     government          filed        a    response.        For     the    reasons

explained     below,      we     vacate      the       district        court’s      order    as    to

Claim One and remand for further proceedings.

              Evans      was    charged       in       a    superseding       indictment         with

transporting        or    shipping          child          pornography       by    computer,      18

U.S.C.A. § 2252A(a)(1) (West Supp. 2010) (Counts One and Two),

and     possession       of     a     computer             and   disks       containing      child

pornography,        18    U.S.C.A.          § 2252A(a)(5)(B)             (West      Supp.    2010)

(Count Three).           Evans went to trial and testified in his own

defense, but was convicted on all counts.                              He was sentenced to a

total of 246 months of imprisonment.                                  In his direct appeal,

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Evans unsuccessfully challenged his sentence.                     United States v.

Evans, 196 F. App’x 194 (4th Cir. 2006).

              Evans    argues      that   the    district       court     abused       its

discretion      in    granting      summary     judgment    on    his     ineffective

assistance of counsel claim without an evidentiary hearing.                            To

succeed on a claim of ineffective assistance of counsel, Evans

must   show    that:       (1)   “counsel’s     representation         fell    below    an

objective standard of reasonableness”; and (2) “the deficient

performance prejudiced the defense.”                Strickland v. Washington,

466 U.S. 668, 687-88 (1984).               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.”       28 U.S.C.A. § 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 and a

credibility determination is necessary in order to resolve the

issue.   United States v. Witherspoon, 231 F.3d 923, 925-27 (4th

Cir. 2000); Raines v. United States, 423 F.2d 526, 530 (4th Cir.

1970).   A district court’s decision concerning whether a hearing

is mandatory under § 2255 is reviewed for abuse of discretion.

Raines, 423 F.2d at 530.



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              In     his     § 2255       motion,        Evans        asserted          that     his

attorney,      Henry       Anderson,         told   him       and     his    wife       that    the

government had offered him a plea agreement, but advised him not

to take it and failed to explain its terms.                                  Evans also said

Anderson told him his sentence would be about the same whether

he went to trial or pled guilty, that is, between seven and ten

years.        In    support       of    this    claim,        Evans      submitted       his    own

affidavit and one from his wife filed under penalty of perjury.

              The government in its response relied on Anderson’s

affidavit in which Anderson stated that he “practically begged”

Evans    to   plead    guilty          because,     in    view      of     the     evidence,     he

thought an acquittal was not possible.                              Anderson also stated

that he told Evans that ninety-eight percent of people who go to

trial are convicted and that the jury would be biased against

him because of the nature of the charged offense.                                        Anderson

stated that he “mentioned the guidelines” to Evans and explained

the base offense level that would apply and what enhancements he

might receive.         Anderson also stated that he wrote to Evans just

before    trial.           That    letter,       included         with      the    government’s

response, briefly described what Evans’ defense would be, and

noted that “we have an uphill battle.”

              The    district          court    acknowledged          that        an   attorney’s

failure       to    adequately          communicate           a     plea     offer        may    be

ineffective        assistance,         see     Jones     v.    Murray,       947       F.2d    1106,

                                                4
1110-11 (4th Cir. 1991), and stated that it had reviewed the

“memoranda,          exhibits,          and      affidavits         submitted          by        the

parties[.]”          Despite the conflict between Evans’ and Anderson’s

affidavits,         the    district      court       concluded      that    no   evidentiary

hearing       was    necessary         because       Evans    had     not     “shown        by     a

preponderance of the evidence that trial counsel was ineffective

in not advising him of the Government’s plea offer.”                                The court

found    that       Evans      had    “not     produced      any    direct       evidence        to

support      his     contention        beyond    the    self-serving          affidavits          of

himself and his wife.”

              The      court         further     decided       that     direct         evidence

submitted       by    the      parties        supported      its    conclusion,            namely,

Anderson’s notes concerning his advice to Evans and two letters

he   wrote     to     Evans.          The     first    was    the     letter      written         on

September 9, 2004, just before trial, in which Anderson stated

that    “we    have       an   uphill       battle.”      The      second     was      a    letter

written in May 2004, not long after Evans’ first meeting with

him, in which Anderson wrote Evans that “I do not know if it

will be in our best interest to go forward with the trial in

June    or    not[.]”          Neither        Anderson’s      notes     nor      his       letters

establish that Anderson explained the government’s plea offer to




                                                 5
Evans or warned him that going to trial would almost certainly

result in a longer sentence if he were convicted. *

             Because         the    affidavits             of    Evans   and     his    wife,

submitted      under      penalty         of    perjury,         contradict      Anderson’s

assertion      that     he     explained       the     government’s       plea    offer       to

Evans, and because Anderson’s affidavit does not refute Evans’

claim that Anderson failed to explain the risks of going to

trial,    it     is     apparent      that           the    district     court       credited

Anderson’s      affidavit          over    Evans’          affidavit     in    making        its

decision.       The government asserts that a testimonial hearing

would have added little or nothing to the written submissions

and   that     Evans’    claim      that       his    attorney      advised    him     not    to

accept the government’s plea offer because he was sure Evans

would be acquitted was incredible.                         This argument only supports

our   conclusion        that    the   resolution            of   Claim   One   required        a

credibility determination.

             Accordingly, we vacate that portion of the district

court’s order denying relief on Claim One and remand for further


      *
       Because Evans “put the government to its burden of proof
at trial” by denying his factual guilt, he did not receive any
reduction of the offense level for acceptance of responsibility.
U.S. Sentencing Guidelines Manual § 3E1.1 cmt. n.2 (2003), and
because he gave testimony that was deemed to be perjured, he
received a two-level upward adjustment under USSG § 3C1.1.
Anderson does not state in his affidavit that he informed Evans
about this possible consequence of going to trial.



                                                6
proceedings.     We, of course, express no view on the merits of

Evans’ claim.     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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