                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-8064


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

JERMARL ALBERT JONES, a/k/a Jamal Miles,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:06−cr−00057−CCB−3; 1:10−cv−02771−CCB)


Argued:   October 29, 2014              Decided:   December 19, 2014


Before GREGORY, AGEE, and DIAZ, Circuit Judges.


Vacated in part and remanded with instructions by unpublished
per curiam opinion.


ARGUED:    Neal    Lawrence   Walters,   SCOTT   KRONER,   PLC,
Charlottesville, Virginia, for Appellant. John Francis Purcell,
Jr., OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland,
for Appellee.     ON BRIEF: Rod J. Rosenstein, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Jermarl Albert Jones was convicted of conspiracy to possess

with the intent to distribute heroin, and his conviction was

affirmed on appeal.         United States v. Jones, 345 F. App’x 872

(4th Cir. 2009).        Subsequently, Jones filed a motion to set

aside, vacate, or correct his sentence under 28 U.S.C. § 2255,

which the district court denied.              United States v. Jones, No.

1:10-cv-02771-CCB, 2012 WL 5832461 (D. Md. Nov. 14, 2012).                      We

granted    a    certificate   of   appealability      on     the   question    of

“whether [Jones’ trial] counsel rendered ineffective assistance

by failing to argue that Jones had standing to move to suppress

[certain] evidence seized” and later used at Jones’ trial.                    See

Order, United States v. Jones, No. 12-8064 (4th Cir. Apr. 24,

2014), ECF No. 16.         Based on the record –- or rather, the lack

of a record permitting adequate appellate review –- we conclude

that an evidentiary hearing is warranted.               For that reason, we

vacate    the   district    court’s   order    in   part 1   and   remand     with

instructions     to   grant   Jones   an   evidentiary       hearing   on     his

ineffective assistance of trial counsel claim.




     1
       Before the district court, Jones also argued that his
appellate counsel rendered ineffective assistance.  Because we
did not grant a certificate of appealability as to that issue,
the district court’s judgment as to appellate counsel is
unaffected.


                                      2
                                       I.

      We review the district court’s legal conclusions de novo.

United States v. Poindexter, 492 F.3d 263, 267 (4th Cir. 2007).

When the district court denies § 2255 relief without conducting

an evidentiary hearing, we review the facts in the light most

favorable to the § 2255 movant.                Id.      We also review a district

court’s failure to conduct an evidentiary hearing for abuse of

discretion.      Cf. Conaway v. Polk, 453 F.3d 567, 582 (4th Cir.

2006) (applying abuse-of-discretion standard in § 2254 appeal).

But see United States v. Lemaster, 403 F.3d 216, 221 n.3 (4th

Cir. 2005) (suggesting that standard of review may be an open

question in § 2255 context).



                                       II.

      In   2005,    a   federal   grand         jury     indicted    Jones,     Calvin

Wright,    and     Johnnie    Butler   for        possession       with    intent   to

distribute    heroin    and    conspiracy         to     possess    with   intent   to

distribute heroin.       The indictments resulted from the arrests of

the   three   codefendants     when    a       police    officer    and    a   property

manager entered Apartment H of the Breezy Tree Court apartment

complex in response to complaints of loud music.                      They found no

furnishings in the apartment except two plastic tables covered

in a white powder residue, drug-cutting materials, and other

items indicating that it was being used to manufacture illegal

                                           3
drugs.      Police obtained a search warrant, and the subsequent

search revealed more than $100,000 worth of heroin and other

evidence that the apartment was a drug stash house.                    Police then

observed two black males drive up and approach the apartment.

As the driver, Calvin Wright, used a key to open the door to

Apartment    H,    police      arrested   both    he   and    Jones,      the   car’s

passenger.        At the time of arrest, Wright held a key to the

apartment, but Jones did not.                 Continued surveillance of the

apartment led to the arrest of Butler, who also had a key to

Apartment H when arrested.

      Wright moved to suppress the evidence found in the search

and   testified     at   his    suppression      hearing     that   the   apartment

leaseholder -- Linnea Worthington -- rented Apartment H for him.

Wright also testified that Worthington gave him one of two keys

to the apartment and that Butler had the other.                      In addition,

Wright said that he had paid the apartment’s rent and had been

in the apartment by himself, had slept on the floor twice, and

would have slept in the apartment on the night of the arrest.

According to Wright, Jones did not have a key to the apartment.

Because authorities had been unable to locate Jones to arrest

him on the federal indictment, neither Jones nor his counsel

attended the hearing.

      Based on Wright’s testimony, the Government conceded that

Wright had a legitimate expectation of privacy in Apartment H --

                                          4
and therefore had standing to challenge the search.                                 Based in

part on that concession, the district court then suppressed the

Apartment    H    evidence      as    to       Wright      as       the    product    of    an

unreasonable     search.        The     Government         later      dropped       its    case

against Wright and, eventually, Butler as well.

       In 2007, federal agents arrested Jones while he was staying

in a hotel room booked under Worthington’s name.                            Unlike Wright,

Jones’ counsel did not move to suppress the Apartment H evidence

–- although he did challenge, unsuccessfully, two post-arrest

searches of other apartments.                  Instead, Jones’ counsel, Stanley

Needleman,      conducted      Jones’      defense        on    the       theory    that   the

Government      could    not    prove      a       connection        between       Jones   and

Apartment H.

       At trial, Needleman argued that Jones should be acquitted

because   the    Government      could         not    prove     a    connection       between

Jones and Apartment H.            In response, the Government presented

evidence showing Worthington as the leaseholder on the Apartment

H lease and noted that Jones was staying at a hotel under her

name at the time of his arrest.                      Needleman sought to discredit

this   connection       by   emphasizing           that   the       Government       did   not

present Worthington’s testimony at trial or otherwise connect

Worthington to Jones.           Jones’ first trial ended in a mistrial,

but a second jury found him guilty of the conspiracy charge.



                                               5
     Following   an   unsuccessful       direct   appeal,   Jones   filed    a

§ 2255 motion contending that Needleman’s failure to move to

suppress the Apartment H evidence was ineffective assistance of

counsel.   In support, Jones filed his own affidavit and two from

Worthington, all of which were short, bare-bones documents.                 In

pertinent part, Jones’ affidavit states:

     I told Mr. Needleman that the apartment at 10 H BREEZY
     TREE Court was rented by My Girlfriend Ms. Linnea
     Worthington, and that I let Calvin Wright and Johnny
     Butler use it from time to time.

     I told Mr. Needleman that I wanted him to suppress the
     evidence found at 10 H BREEZY TREE Court and he stated
     that that would be to[o] risky a strategy.

     Mr. Needleman added that in order for me to suppress
     evidence from BREEZY TREE Court, I would have to show
     that I was connected in a meaningful way to that
     apartment.

     Mr. Needleman stated that if I took the stand at
     suppression, any admission of or ties to BREEZY TREE
     Court would be used at Trial to prove my guilt.

     I relented.

     Mr.   Needleman   assured me   that  there   was  no
     consequential evidence linking me to the crime of
     conspiracy so he was not going to complicate the
     matter by introducing any evidence that would tie me
     to BREEZY TREE Court.

(J.A. 269.)

     Worthington’s two affidavits covered less than one page of

statements combined.     Worthington represented that she rented

Apartment H for Jones at his request and “Mr. Jones had total

dominion and control over the said premises and paid the rent

                                     6
and all other attendant expenses.”                    (J.A. 273.) She also stated

that she did not give Butler and Wright keys or know how they

obtained keys.

       The    Government        presented   no       evidentiary       exhibits.      Of

particular note, there was no affidavit from Needleman and no

explanation for its absence in the record.

       Without holding an evidentiary hearing, the district court

denied Jones’ § 2255 motion.             The district court determined that

Needleman’s decision not to move to suppress was a “virtually

unchallengeable”          “strategic    decision”        and      reflected     competent

legal counsel because moving to suppress would have (1) required

Jones to admit a connection to the apartment and (2) provided a

witness (namely, Worthington) who the Government had otherwise

been    unable       to    find.       Jones,        2012    WL      5832461,    at   *2.

Furthermore,         it    concluded    that         Jones     had    not   established

prejudice         from    any   allegedly   deficient          performance,      as   the

evidence in the record did not show that Jones would have had

standing to challenge the search.

       Jones requested a certificate of appealability, which we

granted      on    the    limited   issue       of    whether     Needleman     provided

ineffective assistance of counsel in failing to move to suppress

the evidence from Apartment H.              We have jurisdiction over Jones’

appeal pursuant to 28 U.S.C. §§ 1291 and 2253.



                                            7
                                        III.

      The     Sixth      Amendment        provides,     “In      all      criminal

prosecutions, the accused shall enjoy the right . . . to have

the Assistance of Counsel for his defence.”                 U.S. Const. amend.

VI.   The right to counsel includes “the right to the effective

assistance of counsel.”           Poindexter, 492 F.3d at 267 (quoting

McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).                      Jones’

ineffective assistance claim is governed by the standard set

forth in Strickland v. Washington, 466 U.S. 668 (1984), which

requires      Jones   to   prove        “that   counsel’s      performance    was

deficient” and “that the deficient performance prejudiced the

defense.” Id. at 687.

                                         A.

      Jones    asserts     that    Needleman       provided    constitutionally

deficient assistance by failing to challenge the Apartment H

search.        Specifically,       he     argues     that     Needleman     either

misunderstood or ignored Simmons v. United States, 390 U.S. 377

(1968), in failing to move to suppress.               In Simmons, the Supreme

Court held “that when a defendant testifies in support of a

motion to suppress evidence on Fourth Amendment grounds, his

testimony may not thereafter be admitted against him at trial on

the issue of guilt unless he makes no objection.”                   Id. at 394.

In effect, Jones contends that a reasonably competent criminal

defense attorney would know that a defendant is not forced to

                                          8
choose between forfeiting a potential Fourth Amendment objection

and forfeiting a later defense at trial.                           See Simmons, 390 U.S.

at 392-93.

       To determine if Needleman did in fact base his Apartment H

suppression        decision     on    a    Simmons-related            mistake,      we   must

evaluate     Needleman’s       “perspective             at   the    time.”       Griffin    v.

Warden, Md. Corr. Adjustment Ctr., 970 F.2d 1355, 1359 (4th Cir.

1992)    (quoting     Strickland,         466       U.S.     at    689).     And    while   we

cannot “rely on hindsight to reconstruct the circumstances of

counsel’s conduct,” Winston v. Pearson, 683 F.3d 489, 504 (4th

Cir.     2012),     we   must    indulge            a    “strong      presumption”       that

Needleman’s conduct was reasonable, United States v. Galloway,

749 F.3d 238, 241 (4th Cir. 2014) (quoting Strickland, 466 U.S.

at   689).         Unfortunately,         the       Government       did   not     submit   an

affidavit from Needleman and Jones’ short affidavit is the only

account      now    in   the     record         of      Needleman’s        contemporaneous

perspective on his trial strategy.

       The parties’ arguments thus center upon how to interpret

Jones’    affidavit.          Jones       represented         in     the   affidavit     that

Needleman said “if [Jones] took the stand at suppression, any

admission of or ties to BREEZY TREE Court would be used at Trial

to prove [his] guilt.”               (J.A. 269.)             Jones contends that this

statement conflicts with the rule recognized in Simmons.



                                                9
       The     Government     counters         that    the     affidavit        demonstrates

Needleman’s           strategic     decisionmaking                 in      that      he         was

appropriately concerned that the Government could use derivative

evidence       from    a   suppression         hearing       to    Jones’       detriment       at

trial.       Specifically, the Government posits that Jones’ argument

asserting      his     standing    as     to    Apartment          H    would    have     likely

required Worthington’s testimony to have a realistic chance at

success,       particularly       since        Jones     had      no     key,     was     not     a

signatory to the lease, and codefendant Wright had testified as

to his (Wright’s) entitlement via Worthington to the apartment.

However, the Government had been unable to locate her.

       Because Jones’ affidavit can be read to support Jones’ and

the Government’s positions, it is ambiguous.                              On the one hand,

the affidavit creates a colorable claim that Needleman believed

that     the    Government        could        use     Jones’          suppression      hearing

testimony as direct evidence against him at trial to prove his

guilt.       If the affidavit’s representation of Needleman’s concern

is factually accurate, then, in light of the recognized rule in

Simmons,       Needleman     may    well        have     performed          deficiently          by

failing to challenge the seized evidence.                              See, e.g., Owens v.

United States, 387 F.3d 607, 608-09 (7th Cir. 2004) (describing

that counsel could be considered ineffective by making decisions

based on an unfamiliarity with Simmons).                          On the other hand, the

affidavit also states that Needleman “assured [Jones] that there

                                               10
was   no   consequential       evidence     linking      [him]    to    the    crime    of

conspiracy so [Needleman was not going to complicate the matter

by introducing any evidence that would tie [Jones] to BREEZY

TREE Court.”      This statement, as the Government posits, suggests

defense counsel’s strategic decision.                     In particular, Simmons

might      not   have    prevented      the      Government        from       presenting

Worthington’s suppression testimony or other derivative evidence

at trial if the suppression motion failed.                  See United States v.

Boruff, 870 F.2d 316, 320 (5th Cir. 1989) (“The Fifth Amendment

. . . does not protect the testimony of individuals who are not

incriminating     themselves      and     who    have    only     supported      another

individual’s      invocation      of    his      Fourth     Amendment         rights.”).

Jones’     affidavit    thus    does    not     conclusively      establish       Jones’

claim of ineffective assistance nor does it definitively support

the   Government’s      claim    that     counsel’s       conduct      was    clearly    a

strategic decision.

      At    bottom,     the    difference       here    between     constitutionally

deficient performance and sound trial strategy turns on what

Needleman meant when he allegedly said that the Government could

use Jones’ “admission of or ties to” Apartment H.                             We do not

believe the district court could make an informed judgment as to

what Needleman meant on this limited record.                     At the outset, the

question involves something of a credibility determination: the

district court must decide whether it believes Jones’ accounts

                                          11
of his conversations with Needleman in the face of any other

evidence.        The    court    must   also      determine    what       Needleman’s

statements      truly   meant.      Credibility          determinations     normally

call for an evidentiary hearing.                 See Raines v. United States,

423 F.2d 526, 530 (4th Cir. 1970).

       But Jones’ credibility is not the only point indicating the

prudence of an evidentiary hearing.                Noticeably absent from the

record is an affidavit or testimony from Needleman describing

his     decisionmaking     process,        his    trial     strategy,       and     the

substance of his discussions with Jones.                   It would be imprudent

to find counsel constitutionally ineffective without affording

him an opportunity to explain his actions.                  See United States v.

Mandello, 426 F.2d 1021, 1023 (4th Cir. 1970) (per curiam) (“It

would    be   grossly    unfair    to   the      trial    counsel    to    fault    his

representation without having in the record some statement from

him.     Courts must be equally vigilant to protect counsel from

the unfair imputation of professional neglect as to assure to

the    defendant   effective      representation.”).           In    short,    it    is

simply    not   known    how    “counsel    would    respond    to    a    charge    of

ineffective assistance.”            Sneed v. Smith, 670 F.2d 1348, 1355

(4th Cir. 1982).        “[U]ntil it is[,] we think the colorable claim

made here . . . cannot properly be resolved.”                 Id.

       Title 28 U.S.C. § 2255(b) requires a “prompt hearing” on a

petitioner’s § 2255 petition unless “the motion and the files

                                        12
and records of the case conclusively show that the prisoner is

entitled to no relief.”                We conclude that the present record

does    not    “conclusively”         foreclose       Jones’     claim    of   deficient

performance.          See United States v. Witherspoon, 231 F.3d 923,

927     (4th       Cir.     2000)     (holding       that   the    record       did    not

“conclusively” foreclose § 2255 relief where it was “not clear”

that “counsel dispute[d] the facts alleged” by the petitioner).

                                              B.

       Even though we conclude that the district court prematurely

decided Strickland’s performance prong, remand is not automatic.

Jones       must     also     carry     his        burden   of    establishing        that

Needleman’s         alleged    deficient       representation          prejudiced     him.

Consequently, remand would be unnecessary if we agreed with the

district court that Jones failed to make such a showing.

       When counsel’s deficiency is based on the litigation of a

Fourth Amendment claim, the § 2255 movant must prove prejudice

by showing “that his Fourth Amendment claim is meritorious and

that there is a reasonable probability that the verdict would

have been different absent the excludable evidence.”                           Kimmelman

v. Morrison, 477 U.S. 365, 375 (1986).

       To succeed in his Fourth Amendment challenge, Jones would

first need to establish that he has standing to challenge the

search of Apartment H.              In other words, Jones must show that he

had    “a    legitimate       expectation      of     privacy”    in    the    apartment.

                                              13
United   States      v.    Gray,    491    F.3d    138,    144       (4th    Cir.      2007)

(quoting     Minnesota     v.    Carter,     525   U.S.    83,    89    (1998)).          An

expectation     of     privacy     is     legitimate      if    it     is    objectively

reasonable in light of the totality of the circumstances.                                See

United States v. Castellanos, 716 F.3d 828, 846 (4th Cir. 2013).

Relevant factors in this analysis include “whether the person

claims an ownership or possessory interest in the property, the

individual’s control of the area searched, his efforts to ensure

his privacy in the object or area, the purposes for which the

individual     uses       the    property,       his    historical          use   of     the

property, and society’s common understanding as to areas that

deserve Fourth Amendment protection.”                   Id. (internal citations,

quotation marks, and alterations omitted).

      The    district      court     held       that    Jones    did        not   have     a

reasonable expectation of privacy in the apartment because the

court “likely . . . would have concluded that Jones was merely

‘running a drug ring’ out of the apartment of a third party.”

Jones, 2012 WL 5832461, at *2.

      Here    again,      we    conclude    that   an     evidentiary        hearing      is

necessary to resolve the credibility disputes inherent in the

conflicting versions of Jones’ status vis-à-vis the apartment.

The   testimony      of   Jones’    codefendant,        Wright,       and    Jones’      and

Worthington’s        affidavits      present       contradictory            accounts      of

Jones’ relationship to Apartment H –- and, consequently, his

                                           14
standing to claim a privacy interest.               We routinely remand for

further proceedings when conflicting testimony like this appears

in the record. 2     See, e.g., United States v. Diaz, 547 F. App’x

303, 304 (4th Cir. 2013) (per curiam); United States v. Wright,

538   F.   App’x   237,   237   (4th   Cir.   2013)    (per   curiam);    accord

United States v. Rivas-Lopez, 678 F.3d 353, 359 (5th Cir. 2012).

The reason is obvious: the district court is best able to assess

the credibility of conflicting accounts through an evidentiary

hearing.     See generally Walters v. Harris, 460 F.2d 988 (4th

Cir. 1972) (reversing the district court’s denial of a § 2255

movant’s    ineffective     assistance      claim     and   remanding    for   an

      2
        As the matter may arise on remand, we address one
evidentiary dispute that the parties reference on appeal.
Without citation to authority, Jones argues it would violate his
right to due process to consider facts produced at codefendant
Wright’s suppression hearing. We disagree.

     The Wright suppression hearing testimony could be properly
considered at Jones’ § 2255 evidentiary hearing so long as Jones
is afforded a fair opportunity to challenge the veracity and
accuracy of that testimony.     See Smith v. United States, 206
F.3d 812, 813 (8th Cir. 2000) (per curiam) (finding no due
process concern in use at sentencing of testimony from a
codefendant’s trial even though the defendant “was not present,
represented, or able to confront and cross-examine witnesses at
his codefendant’s trial”).     As in a sentencing hearing, the
rules of evidence do not apply with equal force in § 2255
proceedings.   See 1 Randy Hertz & James S. Liebman, Federal
Habeas Corpus Practice & Procedure § 19.5 (6th ed. 2011)
(“[H]earsay,   best    evidence,   authentication,    and   other
evidentiary rules are [chiefly] abandoned.”).      While Wright’s
testimony bears indicia of reliability as a sworn statement
given in open court, Jones would have the right to call Wright
in the § 2255 hearing as his witness or cross-examine him should
the Government present him as their witness.


                                       15
evidentiary hearing to assess the credibility of witnesses who

previously       only     testified        through      conflicting        affidavits),

overruled on other grounds by United States v. Whitley, 759 F.2d

327 (4th Cir. 1985) (en banc); cf. United States v. Nicholson,

475 F.3d 241, 252 (4th Cir. 2007) (reversing a district court’s

denial    of     § 2255    movant’s        ineffective        assistance       claim   and

remanding because the inquiry was “heavily fact dependent” and

“there    are    material       factual     issues      yet   to   be    addressed     and

determined in this case”).

       As with our analysis of the performance prong, the bare

bones    record     does       not    permit      us    to    properly    perform      our

appellate review function and augurs for an evidentiary hearing

so that the district court can make an informed determination

upon a properly developed record.

                                            C.

       We have always declined to create a rigid rule that would

override a district court’s “common sense and sound discretion”

when determining whether an evidentiary hearing must be held for

a § 2255 motion.          Raines, 423 F.2d at 530.                 However, where the

circumstances point to an evidentiary hearing to fairly resolve

the     issues    presented          and   provide      an    adequate        record   for

appellate review, we have required such a hearing.                             The scant

record before the district court simply does not “conclusively”

show    that     Jones    is   entitled      to    no    relief.        See    28   U.S.C.

                                            16
§ 2255(b).      Neither    does    it    clearly      establish     that   Jones    is

entitled   to   the    relief     he    seeks.        For   these    reasons,      the

district court should hold an evidentiary hearing in order to

develop    an   adequate       record     upon     which     a    fully    informed

adjudication    of    Jones’    motion    can    be   conducted      and   a   proper

appellate review of any judgment may be performed.



                                         IV.

     For the reasons stated, the order of the district court is

hereby

                      VACATED IN PART AND REMANDED WITH INSTRUCTIONS.




                                         17
