United States v. Humberto Diaz , 547 F. App'x 303 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6952
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HUMBERTO DIAZ, Jose Humberto Diaz,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever, III,
Chief District Judge. (7:09-cr-00100-D-3; 7:11-cv-00043-D)
Submitted: November 5, 2013 Decided: December 4, 2013
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Vacated in part, dismissed in part, and remanded by unpublished
per curiam opinion.
Humberto Diaz, Appellant Pro Se. Ethan A. Ontjes, Assistant
United States Attorney, Michael Gordon James, Tobin Webb Lathan,
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Unpublished opinions are not binding precedent in this circuit.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:
Humberto Diaz seeks to appeal the district court’s
order dismissing his 28 U.S.C.A. § 2255 (West Supp. 2013)
motion. We previously granted a certificate of appealability
with respect to Diaz’s claim that counsel rendered ineffective
assistance in failing to note a direct appeal as requested.
After additional briefing, we vacate in part and remand and
dismiss the appeal in part.
In his § 2255 motion, which was verified in compliance
with 28 U.S.C. § 1746 (2006), Diaz claimed that he requested
that counsel file a notice of appeal. The Government presented
an affidavit from counsel attesting that Diaz never requested
that a notice of appeal be filed.
In United States v. Peak, 992 F.2d 39, 41–42 (4th Cir.
1993), this court held that counsel’s failure to file a notice
of appeal as directed constitutes per se ineffective assistance.
Under 28 U.S.C.A. § 2255(b), unless the pleadings, files, and
records conclusively show that the prisoner is not entitled to
relief, the district court shall hold an evidentiary hearing.
United States v. Witherspoon, 231 F.3d 923, 925–27 (4th Cir.
2000). Whether an evidentiary hearing is necessary is generally
left to the sound discretion of the district judge, but we long
ago recognized that there remains “a category of petitions,
usually involving credibility, that will require an evidentiary
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hearing in open court.” Raines v. United States, 423 F.2d 526,
530 (4th Cir. 1970).
Diaz’s claim that counsel failed to file a notice of
appeal when requested, if believed, states a colorable claim of
ineffective assistance. Peak, 992 F.2d at 41–42. However, the
district court denied relief with respect to this claim after
determining that it lacked credibility. In light of Diaz’s
claim, under penalty of perjury, that counsel failed to honor
his request to file a notice of appeal and counsel’s conflicting
affidavit denying that Diaz asked him to note an appeal, the
record did not conclusively show that Diaz was not entitled to
relief. 28 U.S.C.A. § 2255(b); see Raines, 423 F.2d at 530
(“When the issue is one of credibility, resolution on the basis
of affidavits can rarely be conclusive.”). The district court
therefore abused its discretion in concluding, without an
evidentiary hearing, that Diaz did not direct counsel to file a
notice of appeal.
Accordingly, we vacate that portion of the district
court’s order denying relief on Diaz’s claim that counsel
rendered ineffective assistance in failing to file a notice of
appeal as requested and remand for further proceedings as to
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this issue. * We previously denied a certificate of appealability
as to Diaz’s remaining claim of ineffective assistance and
dismiss the appeal as to that claim. 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.
VACATED IN PART,
DISMISSED IN PART,
AND REMANDED
*
By this disposition, we indicate no view as to the
appropriate outcome of the proceedings on remand.
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