US v. Harold Blondeau, No. 11-7576 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-7576 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HAROLD EARL BLONDEAU, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Malcolm J. Howard, Senior District Judge. (5:09-cr-00117-H-1; 5:11-cv-00124-H) Submitted: February 23, 2012 Before KING and Circuit Judge. DAVIS, Circuit Decided: Judges, and May 11, 2012 HAMILTON, Senior Vacated in part and remanded by unpublished per curiam opinion. Harold Earl Blondeau, Appellant Pro Se. 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 Unpublished opinions are not binding precedent in this circuit.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: Harold Earl Blondeau, a federal prisoner, filed a 28 U.S.C.A. § 2255 (West Supp. 2011) motion contending, among other claims, that his trial counsel were unconstitutionally ineffective in failing to consult with him regarding his desire to file an appeal. appealability and We granted received Blondeau further a briefing on certificate the of issue of counsel s alleged failure to consult with Blondeau regarding his appellate prospects. We now conclude that the district court s dismissal of Blondeau s § 2255 motion without first holding an evidentiary hearing was an abuse of its discretion. As a result, we vacate in part and remand with instructions to grant Blondeau a hearing on his ineffective assistance of counsel claim. In § 2255 proceedings, [u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. § 2255(b). 28 U.S.C. An evidentiary hearing in open court is required when a movant presents a colorable Sixth Amendment claim showing disputed facts determination is beyond the necessary record in order or to when a resolve credibility the issue. United States v. Witherspoon, 231 F.3d 923, 925-27 (4th Cir. 2 2000); see also Raines v. United States, 423 F.2d 526, 530 (4th Cir. 1970). conduct an This court reviews a district court s refusal to evidentiary hearing for an abuse of discretion. Conaway v. Polk, 453 F.3d 567, 582 (4th Cir. 2006). Our review of the circumstances of this case convinces us that Blondeau s counsel had a duty regarding his wishes to file an appeal. to consult Blondeau See Roe v. Flores- Ortega, 528 U.S. 470, 478-80 (2000); United States v. Cooper, 617 F.3d 307, 313 (4th Cir. 2010); United States v. Poindexter, 492 F.3d 263, 269 (4th Cir. 2007). Accordingly, the ultimate success of Blondeau s § 2255 motion depends on whether counsel actually did or did not consult with him about his appellate preferences. Blondeau claims that they did not, but the district court dismissed his § 2255 motion without conducting any sort of inquiry into the issue. Because whether Blondeau s assertions are correct with respect to his counsel s conduct necessarily requires a credibility determination, or at least the receipt of evidence outside evidentiary hearing was required. 925-27. the present record, an See Witherspoon, 231 F.3d at The district court therefore abused its discretion in failing to hold one. Accordingly, we vacate in part the district court s dismissal of Blondeau s 28 U.S.C. § 2255 motion and remand with instructions to grant him an evidentiary hearing on his claim 3 that counsel failed to consult with him regarding his desire to file an appeal. counsel. legal before We deny Blondeau s motion for appointment of We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. VACATED IN PART AND REMANDED 4
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