United States of America v. Witherspoon, 231 F.3d 923, 925-26 4th Cir. 2000

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7243
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FREDDY RAMIREZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CR-00-330; CA-03-130)
Submitted: November 10, 2004 Decided: January 27, 2005
Before LUTTIG, KING, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Freddy Ramirez, Appellant Pro Se. Elizabeth Jean Howard, OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Freddy Ramirez appeals the district court’s order denying
relief on his motion filed under 28 U.S.C. § 2255 (2000), in which
he claimed that counsel provided ineffective assistance by failing
to give adequate pretrial advice and to communicate a plea offer.
We previously granted Ramirez a certificate of appealability on
these issues. In the same order, we denied a certificate of
appealability and dismissed Ramirez’s appeal with respect to all
other issues. For the reasons that follow, we vacate the district
court’s order as to the issues on which we granted a certificate of
appealability and remand for further proceedings.
I.
In his § 2255 motion, Ramirez asserted that trial counsel
provided ineffective assistance by failing to give pretrial advice
about whether to plead guilty or to proceed to trial and by failing
to disclose a ten-year plea offer from the Government. In its
unverified response, the Government contended that Ramirez’s
counsel provided competent pretrial advice and that the record did
not support Ramirez’s claim that a plea offer was made. The
Government did not provide any affidavits to support its
assertions.
The district court rejected Ramirez’s claim that counsel
failed to provide adequate pretrial advice. The court found that

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the presentence report attributed 367.8 kilograms of cocaine to
Ramirez and that the indictment informed Ramirez that he could be
convicted of offenses involving more than five kilograms of
cocaine. Next, the court found that the transcript of the
sentencing hearing belied Ramirez’s claim that counsel failed to
advise him about the benefits of pleading guilty versus going to
trial. The district court also concluded that Ramirez’s claim that
counsel failed to communicate a plea offer was meritless because it
was based on an unsupported assumption that the Government had made
such an offer.
II.
On appeal, Ramirez contends that the district court erred
in rejecting his ineffective assistance of counsel claims without
an evidentiary hearing. The Government disagrees, noting that the
record demonstrates that Ramirez is not entitled to relief on his
claims.
Generally, an evidentiary hearing is required under 28
U.S.C. § 2255 unless it is clear from the pleadings, files, and
records that a movant is not entitled to relief. United States v.
Witherspoon, 231 F.3d 923, 925-26 (4th Cir. 2000); Raines v. United
States, 423 F.2d 526, 529 (4th Cir. 1970). Whether an evidentiary
hearing is necessary is best left to the sound discretion of the
district court judge. Raines, 423 F.2d at 530. However, when a

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movant presents a colorable Sixth Amendment 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); Raines, 423 F.2d at 530 (“There will remain . . . a category
of petitions, usually involving credibility, that will require an
evidentiary hearing in open court.”).
Here, in finding that counsel gave adequate pretrial
advice and that no plea offer was made, the district court ignored
Ramirez’s sworn statements and instead accepted the Government’s
unverified assertions. Because resolution of these ineffective
assistance of counsel claims turns on a credibility determination,
we vacate this portion of the district court’s order and remand for
further proceedings. Raines, 423 F.2d at 530 (“When the issue is
one of credibility, resolution on the basis of affidavits can
rarely be conclusive[.]”). 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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