United States of America v. Harold Earl Blondeau

UNPUBLISHED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 Decided: May 11, 2012
Before KING and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated in part and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

-- 1 of 4 --

2
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. We granted Blondeau a certificate of
appealability and received further briefing on the 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.” 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 or when a credibility
determination is necessary in order to resolve the issue.
United States v. Witherspoon, 231 F.3d 923, 925-27 (4th Cir.

-- 2 of 4 --

3
2000); see also Raines v. United States, 423 F.2d 526, 530 (4th
Cir. 1970). This court reviews 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).
Our review of the circumstances of this case convinces
us that Blondeau’s counsel had a duty to consult Blondeau
regarding his wishes to file an appeal. 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 the present record, an
evidentiary hearing was required. See Witherspoon, 231 F.3d at
925-27. 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 of 4 --

4
that counsel failed to consult with him regarding his desire to
file an appeal. We deny Blondeau’s motion for appointment of
counsel. 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

-- 4 of 4 --