United States v. Stephen

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-6586
LEVY SAMUEL STEPHEN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Senior District Judge.
(CR-96-197, CA-99-397-5-F)
Submitted: September 20, 2002
Decided: October 10, 2002
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
Dismissed in part and vacated and remanded in part by unpublished
per curiam opinion.
COUNSEL
Levy Samuel Stephen, Appellant Pro Se. Christine Witcover Dean,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. STEPHEN
OPINION
PER CURIAM:
Levy Samuel Stephen seeks to appeal the district court’s order
denying his motion filed under 28 U.S.C. § 2255 (2000). For the rea-
sons discussed below, we deny a certificate of appealability and dis-
miss in part and grant a certificate of appealability and vacate and
remand in part.
Stephen filed a § 2255 motion raising several claims, including that
his counsel provided ineffective assistance by inducing his guilty plea
by promising him a seven to twelve year sentence. He received a sen-
tence of 360 months. The district court summarily dismissed all of
Stephen’s claims. The only issue Stephen asserts on appeal is that the
district court erred by summarily denying his claim that counsel pro-
vided ineffective assistance by promising him a shorter sentence if he
pled guilty; therefore, this is the only issue before us for review. See
4th Cir. R. 34(b).
An evidentiary hearing is required under 28 U.S.C. § 2255 unless
it is conclusive from the pleadings, files, and records that a movant
is not entitled to relief. Raines v. United States, 423 F.2d 526, 529
(4th Cir. 1970). Where the movant presents a colorable Sixth Amend-
ment claim showing disputed facts involving inconsistencies beyond
the record, a hearing is mandated. See United States v. Magini, 973
F.2d 261, 264 (4th Cir. 1992). Stephen submitted an affidavit averring
that counsel told him that he would be sentenced to no more than
twelve years and as low as seven years if he pled guilty, and he
informed Stephen that this agreement was not to be disclosed to the
court. Stephen also submitted an affidavit from his sister averring that
counsel told her of the seven to twelve year sentence that Stephen
would receive if he pled guilty, and counsel requested that she influ-
ence Stephen to plead guilty. We have reviewed the record, including
the Fed. R. Crim. P. 11 hearing, and find that because it is not conclu-
sive that Stephen is entitled to no relief, the district court erred by not
holding an evidentiary hearing on this issue.
We conclude Stephen has made a substantial showing of the denial
of a constitutional right and grant a certificate of appealability as to
UNITED STATES v. STEPHEN 3
Stephen’s ineffective assistance of counsel claim concerning coun-
sel’s alleged inducement for him to plead guilty. See 28 U.S.C.
§ 2253(c) (2000). We also vacate the district court’s order denying
relief on that claim and remand it to the district court for further pro-
ceedings consistent with this opinion. We deny a certificate of
appealability and dismiss the appeal as to the remainder of Stephen’s
claims asserted in the district court because they were not asserted on
appeal. 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.
DISMISSED IN PART; VACATED
AND REMANDED IN PART