United States v. Kenneth Mitchell , 484 F. App'x 744 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6711
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH MITCHELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:03-cr-00351-CCB-4; 1:08-cv-01723-CCB)
Submitted: February 9, 2012 Decided: June 22, 2012
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Vacated in part and remanded by unpublished per curiam opinion.
Kenneth Mitchell, Appellant Pro Se. James G. Warwick, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Mitchell, a federal prisoner, filed a 28
U.S.C.A. § 2255 (West Supp. 2011) motion contending that, among
other defects, his counsel provided ineffective assistance by
failing to fully convey his plea options to him. Mitchell
sought to appeal the district court’s order dismissing his
motion as well as the district court’s refusal to hold a hearing
on his motion. We granted Mitchell a certificate of
appealability and received further briefing on the issue of
counsel’s alleged failure to fully convey Mitchell’s plea
options. We conclude that the district court’s denial of a
hearing was an abuse of its discretion. Therefore, we vacate in
part and remand with instructions to grant Mitchell a hearing on
his ineffective assistance of counsel claim.
The Government has confirmed that it offered two plea
agreements to Mitchell: one that required Mitchell to cooperate
and one that did not require Mitchell’s cooperation. Mitchell
claims that his counsel only communicated the offer with
cooperation to him and told him that his options were to take
the plea agreement or go to trial. Mitchell attempted to take
the plea agreement, but his cooperation was deemed insufficient.
Thus, Mitchell went to trial. A jury found him guilty of
conspiracy to distribute and possess with intent to distribute
cocaine in violation of 21 U.S.C. § 846 (2006). Mitchell was
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sentenced to 235 months in prison followed by five years of
supervised release.
In an affidavit attached to his § 2255 motion,
Mitchell swore that he would have foregone trial had his
attorney properly advised him that he could have pleaded guilty
without cooperation. The district court dismissed Mitchell’s
claim and found instead that Mitchell pursued cooperation with
the advice of counsel, but apparently failed to provide
sufficient cooperation. The court did not make the critical
finding of whether Mitchell’s counsel conveyed the Government’s
non-cooperation plea agreement to Mitchell.
The failure of counsel to communicate a plea offer may
constitute ineffective assistance of counsel. See Jones v.
Murray, 947 F.2d 1106, 1110-11 (4th Cir. 1991); see also United
States v. Blaylock, 20 F.3d 1458, 1465-66 (9th Cir. 1994)
(collecting cases). 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.” 28 U.S.C.
§ 2255(b). An evidentiary hearing in open court is required
when a movant presents a colorable Sixth Amendment claim showing
disputed facts beyond the record and a credibility determination
is necessary in order to resolve the issue. United States v.
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Witherspoon, 231 F.3d 923, 925-27 (4th Cir. 2000); see also
Raines v. United States, 423 F.2d 526, 530 (4th Cir. 1970). We
review a district court’s refusal to conduct an evidentiary
hearing for an abuse of discretion. Conaway v. Polk, 453 F.3d
567, 582 (4th Cir. 2006).
We can find nothing in the district court record to
rebut Mitchell’s claim that his attorney failed to advise him of
the possibility of pleading guilty without cooperation. Nor is
Mitchell’s claim so “palpably incredible or patently frivolous”
that summary dismissal was warranted. Because an evidentiary
hearing was required in order to make the factual findings
necessary to rule on Mitchell’s § 2255 motion, the district
court’s failure to hold one was an abuse of its discretion.
Accordingly, we vacate in part the district court’s
dismissal of Mitchell’s 28 U.S.C. § 2255 motion. We remand with
instructions to grant Mitchell an evidentiary hearing on his
claim that counsel failed to advise him of the Government’s
offer of a plea agreement without cooperation. 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.
VACATED IN PART AND REMANDED
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