US v. Marvin Mobley

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to supplement [1000018849-2]; granting Motion to remand case [999999556-2] Originating case number: 3:09-cr-00189-RJC-DCK-3,3:13-cv-00571-RJC Copies to all parties and the district court/agency. [1000034015]. Mailed to: M Mobley. [16-6176]

Download PDF
Appeal: 16-6176 Doc: 29 Filed: 03/02/2017 Pg: 1 of 5 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-6176 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARVIN SUNTATE MOBLEY, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:09-cr-00189-RJC-DCK-3; 3:13-cv-00571RJC) Submitted: February 24, 2017 Decided: March 2, 2017 Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Vacated in part and remanded with instructions; dismissed in part by unpublished per curiam opinion. Marvin Suntate Mobley, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-6176 Doc: 29 Filed: 03/02/2017 Pg: 2 of 5 PER CURIAM: Marvin Suntate Mobley, a federal prisoner, filed a 28 U.S.C. § 2255 (2012) motion, contending, among other claims, that trial counsel rendered ineffective assistance in various ways prior to his jury trial. Mobley has noted an appeal from the district court’s order denying relief on his § 2255 motion. On November 4, 2016, we granted Mobley appealability as to the following issues: a certificate of (1) whether defense counsel rendered ineffective assistance in advising Mobley that, if he went to trial and was convicted, a mandatory life sentence could not be imposed because his 1997 South Carolina state conviction under the Youthful Offender Act could not be used to support an enhanced sentence; and (2) whether defense counsel rendered ineffective assistance in failing to explain to Mobley prior to trial that the Government could use evidence in the Fed. R. Evid. 404(b) notice against him at trial. We also denied a certificate of appealability as to all remaining issues and directed the Government to file a response addressing the issues upon which the certificate of appealability was granted. In response, the Government filed a motion to remand in which it hearing requests as to the that two this court issues appealability was granted. upon remand for an evidentiary which the certificate of Mobley joins in the Government’s 2 Appeal: 16-6176 Doc: 29 Filed: 03/02/2017 motion to remand. Pg: 3 of 5 He also has filed a motion for leave to supplement and a supplement to his § 2255 motion. 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 § 2255(b). of law with respect thereto.” 28 U.S.C. 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 to resolve the issue. See United States v. Witherspoon, 231 F.3d 923, 925–27 (4th Cir. 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 record — including the affidavits proffered by Mobley and by defense counsel — and the parties’ submissions on appeal convinces us that the district court abused its discretion in denying relief on Mobley’s ineffective assistance claims that were the subject of the November 4 order without holding an evidentiary hearing. Accordingly, we vacate in part the district court’s denial of relief on Mobley’s § 2255 motion, grant the Government’s motion to remand, and remand with 3 Appeal: 16-6176 Doc: 29 Filed: 03/02/2017 instructions to claims trial that grant Mobley counsel Pg: 4 of 5 an evidentiary rendered hearing ineffective on assistance his in advising Mobley that, if he went to trial and was convicted, a mandatory life sentence could not be imposed because his 1997 South Carolina state conviction under the Youthful Offender Act could not be used to support an enhanced sentence and failing to explain to Mobley prior to trial that the Government could use evidence in the Rule 404(b) notice against him at trial. Affording Mobley’s motion for leave to supplement and supplement liberal construction in light of his pro se status, see In re Under Seal, 749 F.3d 276, 290 (4th Cir. 2014), we construe the motion and supplement as a motion to expand the certificate of A certificate appealability of appealability granted will by not this issue court. absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). relief on the demonstrating district debatable merits, that court’s or a When the district court denies prisoner reasonable assessment wrong. Slack satisfies jurists this would of the v. McDaniel, standard find U.S. that the claims constitutional 529 by is 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the 4 motion states a debatable Appeal: 16-6176 Doc: 29 Filed: 03/02/2017 Pg: 5 of 5 claim of the denial of a constitutional right. at 484-85. Slack, 529 U.S. We conclude that Mobley fails to make the requisite showing. Accordingly, we deny Mobley’s motion to expand the certificate of appealability and dismiss the appeal in part. We dispense with contentions are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. VACATED IN PART AND REMANDED WITH INSTRUCTIONS; DISMISSED IN PART 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?