United States v. Harris ( 1997 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                    No. 97-6725
    VINCENT HARRIS,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Eastern District of North Carolina, at Raleigh.
    Malcolm J. Howard, District Judge.
    (CR-93-59-H, CA-97-13-4-H)
    Submitted: November 25, 1997
    Decided: December 31, 1997
    Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges.
    _________________________________________________________________
    Vacated and remanded by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Vincent Harris, Appellant Pro Se.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Vincent Ray Harris appeals from the district court's order denying
    relief on his 
    28 U.S.C.A. § 2255
     (West 1994 & Supp. 1997) motion.
    Harris pled guilty to bank robbery and was sentenced to sixty-six
    months imprisonment. In his § 2255 motion, Harris claimed he
    received ineffective assistance of counsel when his attorney failed to
    note an appeal as instructed by Harris. The district court found his
    claim to be without merit and denied relief.* Harris appeals from this
    order.
    This court has held that "a criminal defense attorney's failure to file
    a notice of appeal when requested by his client deprives the defendant
    of his Sixth Amendment right to the assistance of counsel, notwith-
    standing that the lost appeal may not have had a reasonable probabil-
    ity of success." United States v. Peak, 
    992 F.2d 39
    , 42 (4th Cir. 1993).
    Unless it is clear from the pleadings, files, and records that the pris-
    oner is not entitled to relief, § 2255 makes an evidentiary hearing
    mandatory. 
    28 U.S.C.A. § 2255
    ; see Raines v. United States, 423 F.2d
    _________________________________________________________________
    *The government filed a motion for summary judgment. Harris was
    granted an enlargement of time in which to respond to the motion, but
    failed to respond within the extended time period. As such, pursuant to
    Local Rule 4.04, the district court granted the government's motion and
    dismissed the action. Nevertheless, "in an abundance of caution," the
    court evaluated the merits of Harris's claim and concluded the claim was
    meritless.
    However, Harris did respond prior to entry of the court's order with
    an affidavit in which he reasserted that he had requested counsel to note
    an appeal. The affidavit was filed on April 28, 1997, two days before the
    court's order was entered on April 30, 1997, and ten days after the
    extended time in which the court had set for a response on April 18,
    1997. The court's memorandum opinion did not mention Harris's affida-
    vit and it appears as though the district court construed it as a notice of
    appeal, even though it was filed two days before the court's order was
    entered. Even if the court did not consider the affidavit, Harris's com-
    plaint was verified, and a verified complaint is the equivalent of an
    opposing affidavit for summary judgment purposes. Williams v. Griffin,
    
    952 F.2d 820
    , 823 (4th Cir. 1991).
    2
    526, 529 (4th Cir. 1970). The district court's determinations as to
    whether to hold a hearing under § 2255 and whether petitioner is
    required to be present at the hearing are reviewed for abuse of discre-
    tion. Raines, 423 F.2d at 529-30. Notwithstanding the court's wide
    discretion in the matter, "[t]here will remain, however, a category of
    petitions, usually involving credibility, that will require an evidentiary
    hearing in open court." Id. "When the issue is one of credibility, reso-
    lution on the basis of affidavits can rarely be conclusive . . . ." Id.
    There is a factual dispute as to whether Harris requested his attor-
    ney, Elizabeth Manton, to file a direct appeal following his convic-
    tion. By verified complaint, Harris alleged that Manton failed to file
    a notice of appeal as requested. See Williams v. Griffin, 
    952 F.2d 820
    ,
    823 (4th Cir. 1991) (holding that a verified complaint can substitute
    for an affidavit opposing summary judgment). Manton did not submit
    an affidavit; instead, the court relied on an affidavit submitted by the
    acting Federal Public Defender, Edwin Walker, who stated that after
    speaking with Manton, it was his understanding that Harris said he
    did not wish to pursue an appeal. Based on Walker's affidavit, the
    court's own recollection and notes of the "overwhelming" evidence
    against Harris, the plea agreement, the Rule 11 colloquy, and coun-
    sel's performance at trial, the district court held that Manton did in
    fact provide "effective and zealous representation of the petitioner
    both before, during and after the judgment."
    Because the evidence on the issue was conflicting, the district court
    should have conducted a hearing before making a factual determina-
    tion. See Becton v. Barnett, 
    920 F.2d 1190
     (4th Cir. 1990) (petition-
    er's allegation that his attorney failed to file a notice of appeal as
    instructed required remand for evidentiary hearing). Accordingly, we
    grant a certificate of appealability and remand with instructions for
    the district court to conduct an evidentiary hearing to make appropri-
    ate factual findings.
    We dispense with oral argument because the facts and legal conten-
    tions are adequately presented in the materials before the court and
    argument would not aid the decisional process.
    VACATED AND REMANDED
    3