United States v. Wendell Lloyd, Jr. , 633 F. App'x 120 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6852
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WENDELL HUSSEY LLOYD, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:14-cr-00043-D-1; 5:14-cv-00895-D)
Submitted: January 27, 2016 Decided: February 10, 2016
Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Wendell Hussey Lloyd, Jr., Appellant Pro Se. Jennifer P. May-
Parker, Assistant United States Attorney, Seth Morgan Wood,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wendell Hussey Lloyd, Jr., appeals the district court’s
judgment denying relief on his 28 U.S.C. § 2255 (2012) motion.
We granted a certificate of appealability and ordered
supplemental briefing on a single issue: whether an evidentiary
hearing was needed in the district court to resolve Lloyd’s
claim that counsel’s failure to file a notice of appeal as
requested amounted to ineffective assistance. For the reasons
that follow, we vacate in part and remand for further
proceedings.
We review de novo the district court’s legal conclusions
underlying its denial of § 2255 relief. United States v.
Hairston, 754 F.3d 258, 260 (4th Cir. 2014). We review for
abuse of discretion the district court’s decision not to hold an
evidentiary hearing to resolve an issue presented in a § 2255
motion. See Gordon v. Braxton, 780 F.3d 196, 204 (4th Cir.
2015); Raines v. United States, 423 F.2d 526, 530 (4th Cir.
1970). A district court abuses its discretion when it commits
an error of law. Koon v. United States, 518 U.S. 81, 100
(1996).
“Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief,
the [district] court shall . . . grant a prompt hearing thereon,
determine the issues and make findings of fact and conclusions
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of law with respect thereto.” 28 U.S.C. § 2255(b); see United
States v. Thomas, 627 F.3d 534, 539 (4th Cir. 2010). When a
prisoner presents a colorable Sixth Amendment claim showing
disputed facts involving inconsistencies beyond the record, a
hearing is required. United States v. Magini, 973 F.2d 261, 264
(4th Cir. 1992); see Raines, 423 F.2d at 530. When a § 2255
movant asserts an ineffective assistance of counsel claim based
on counsel’s failure to note an appeal, the district court
generally must hold an evidentiary hearing before finding that
the movant did not unequivocally instruct counsel to file a
notice of appeal. See United States v. Poindexter, 492 F.3d
263, 269 (4th Cir. 2007); United States v. Witherspoon, 231 F.3d
923, 926-27 (4th Cir. 2000).
To establish ineffective assistance of counsel, Lloyd must
demonstrate that counsel’s performance was objectively
unreasonable and that Lloyd was prejudiced by counsel’s
deficient performance. Strickland v. Washington, 466 U.S. 668,
687 (1984). Counsel is per se ineffective if he fails to file a
notice of appeal when instructed to do so. Strong v. Johnson,
495 F.3d 134, 138 (4th Cir. 2007). In such a case, the
petitioner need not demonstrate prejudice to sustain his claim,
as prejudice is presumed from the forfeiture of the appellate
proceeding. Poindexter, 492 F.3d at 268.
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Although advised of his obligation to provide evidence to
oppose the Government’s summary judgment motion, Lloyd did not
file an affidavit or other competent evidence to support the
more specific allegations in his summary judgment pleadings.
However, Lloyd’s § 2255 motion was verified in compliance with
28 U.S.C. § 1746 (2012). In it, he stated that he renewed his
request to counsel for an appeal after his sentencing hearing,
but counsel did not file an appeal after being asked to do so.
Viewing this sworn statement, as we must, in the light most
favorable to Lloyd, see Scott v. Harris, 550 U.S. 372, 378, 380
(2007) (summary judgment standard); Poindexter, 492 F.3d at 267
(§ 2255 proceedings) — particularly in light of his later
unsworn statements clarifying his factual contentions — Lloyd’s
sworn motion is not inconsistent with a finding that he
requested that counsel file an appeal after he signed an
acknowledgement of rights form indicating that he did not wish
to appeal. In light of this evidence, we conclude counsel’s
affidavit to the contrary was not dispositive of Lloyd’s claim,
and the district court erred in granting summary judgment in
favor of the Government.
Accordingly, we vacate the district court’s judgment
insofar as it dismisses Lloyd’s claim that his counsel was
ineffective in failing to note an appeal, and remand for further
proceedings consistent with this opinion. We deny a certificate
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of appealability as to Lloyd’s remaining claim and dismiss that
portion of the appeal. We deny as moot Lloyd’s motion for
counsel. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
DISMISSED IN PART,
VACATED IN PART,
AND REMANDED
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