Unpublished Dispositioneugene Hardin, Sr., Petitioner-appellant, v. United States of America, Respondent-appellee, 774 F.2d 1162 (6th Cir. 1985)

This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

In this motion to vacate sentence under 28 U.S.C. § 2255, petitioner challenges his conviction for narcotics violations. The district court denied the relief sought and petitioner has appealed. On appeal, the parties have briefed the issues; in addition, petitioner requests the appointment of appellate counsel.

Upon consideration, we must vacate and remand. The district court, in denying petitioner's request for relief, entered a terse five-line order. This sort of summary disposition is only appropriate where 'it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court.' Rule 4(b), 28 U.S.C. foll. Sec. 2255. Because it does not plainly appear on the face of the record before us that petitioner is entitled to no relief, the judgment of the district court must be vacated and the cause remanded for an evidentiary hearing, if necessary, and for entry of appropriate findings of fact and conclusions of law.

IT IS ORDERED that the motion for counsel is denied without prejudice to refile in a subsequent appeal and that the final order of the district court be vacated and the cause remanded for further proceedings not inconsistent with this order.