United States v. Evans , 429 F. App'x 213 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6367
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES DALE EVANS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:04-cr-00140-TLW-1; 4:08-cv-70011-TLW)
Submitted: March 10, 2011 Decided: May 6, 2011
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
James Dale Evans, Appellant Pro Se. William E. Day, II,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Dale Evans appeals from the district court’s
order granting summary judgment to the government and denying
relief on his 28 U.S.C.A. § 2255 (West Supp. 2010) motion, in
which he asserted four claims of ineffective assistance and
challenged his sentence on Fifth and Sixth Amendment grounds.
We previously granted a certificate of appealability on the
issue of whether the district court abused its discretion in
denying, without an evidentiary hearing, Evans’ claim that
counsel was ineffective in failing to explain adequately the
government’s offer of a plea agreement and the risks of going to
trial (Claim One). We denied a certificate of appealability as
to Evans’ remaining claims, and dismissed the appeal of those
claims. The government filed a response. For the reasons
explained below, we vacate the district court’s order as to
Claim One and remand for further proceedings.
Evans was charged in a superseding indictment with
transporting or shipping child pornography by computer, 18
U.S.C.A. § 2252A(a)(1) (West Supp. 2010) (Counts One and Two),
and possession of a computer and disks containing child
pornography, 18 U.S.C.A. § 2252A(a)(5)(B) (West Supp. 2010)
(Count Three). Evans went to trial and testified in his own
defense, but was convicted on all counts. He was sentenced to a
total of 246 months of imprisonment. In his direct appeal,
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Evans unsuccessfully challenged his sentence. United States v.
Evans, 196 F. App’x 194 (4th Cir. 2006).
Evans argues that the district court abused its
discretion in granting summary judgment on his ineffective
assistance of counsel claim without an evidentiary hearing. To
succeed on a claim of ineffective assistance of counsel, Evans
must show that: (1) “counsel’s representation fell below an
objective standard of reasonableness”; and (2) “the deficient
performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687-88 (1984). 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.A. § 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. Witherspoon, 231 F.3d 923, 925-27 (4th
Cir. 2000); Raines v. United States, 423 F.2d 526, 530 (4th Cir.
1970). A district court’s decision concerning whether a hearing
is mandatory under § 2255 is reviewed for abuse of discretion.
Raines, 423 F.2d at 530.
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In his § 2255 motion, Evans asserted that his
attorney, Henry Anderson, told him and his wife that the
government had offered him a plea agreement, but advised him not
to take it and failed to explain its terms. Evans also said
Anderson told him his sentence would be about the same whether
he went to trial or pled guilty, that is, between seven and ten
years. In support of this claim, Evans submitted his own
affidavit and one from his wife filed under penalty of perjury.
The government in its response relied on Anderson’s
affidavit in which Anderson stated that he “practically begged”
Evans to plead guilty because, in view of the evidence, he
thought an acquittal was not possible. Anderson also stated
that he told Evans that ninety-eight percent of people who go to
trial are convicted and that the jury would be biased against
him because of the nature of the charged offense. Anderson
stated that he “mentioned the guidelines” to Evans and explained
the base offense level that would apply and what enhancements he
might receive. Anderson also stated that he wrote to Evans just
before trial. That letter, included with the government’s
response, briefly described what Evans’ defense would be, and
noted that “we have an uphill battle.”
The district court acknowledged that an attorney’s
failure to adequately communicate a plea offer may be
ineffective assistance, see Jones v. Murray, 947 F.2d 1106,
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1110-11 (4th Cir. 1991), and stated that it had reviewed the
“memoranda, exhibits, and affidavits submitted by the
parties[.]” Despite the conflict between Evans’ and Anderson’s
affidavits, the district court concluded that no evidentiary
hearing was necessary because Evans had not “shown by a
preponderance of the evidence that trial counsel was ineffective
in not advising him of the Government’s plea offer.” The court
found that Evans had “not produced any direct evidence to
support his contention beyond the self-serving affidavits of
himself and his wife.”
The court further decided that direct evidence
submitted by the parties supported its conclusion, namely,
Anderson’s notes concerning his advice to Evans and two letters
he wrote to Evans. The first was the letter written on
September 9, 2004, just before trial, in which Anderson stated
that “we have an uphill battle.” The second was a letter
written in May 2004, not long after Evans’ first meeting with
him, in which Anderson wrote Evans that “I do not know if it
will be in our best interest to go forward with the trial in
June or not[.]” Neither Anderson’s notes nor his letters
establish that Anderson explained the government’s plea offer to
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Evans or warned him that going to trial would almost certainly
result in a longer sentence if he were convicted. *
Because the affidavits of Evans and his wife,
submitted under penalty of perjury, contradict Anderson’s
assertion that he explained the government’s plea offer to
Evans, and because Anderson’s affidavit does not refute Evans’
claim that Anderson failed to explain the risks of going to
trial, it is apparent that the district court credited
Anderson’s affidavit over Evans’ affidavit in making its
decision. The government asserts that a testimonial hearing
would have added little or nothing to the written submissions
and that Evans’ claim that his attorney advised him not to
accept the government’s plea offer because he was sure Evans
would be acquitted was incredible. This argument only supports
our conclusion that the resolution of Claim One required a
credibility determination.
Accordingly, we vacate that portion of the district
court’s order denying relief on Claim One and remand for further
*
Because Evans “put the government to its burden of proof
at trial” by denying his factual guilt, he did not receive any
reduction of the offense level for acceptance of responsibility.
U.S. Sentencing Guidelines Manual § 3E1.1 cmt. n.2 (2003), and
because he gave testimony that was deemed to be perjured, he
received a two-level upward adjustment under USSG § 3C1.1.
Anderson does not state in his affidavit that he informed Evans
about this possible consequence of going to trial.
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proceedings. We, of course, express no view on the merits of
Evans’ claim. 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 AND REMANDED
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