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UNPUBLISHED PER CURIAM OPINION filed.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]
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UNPUBLISHED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part by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
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motion to remand.
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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
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instructions
to
claims
trial
that
grant
Mobley
counsel
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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
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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
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