US v. Marvin Mobley
UNPUBLISHED PER CURIAM OPINION filed.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. . Mailed to: M Mobley. [16-6176]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
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.
February 24, 2017
March 2, 2017
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
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part by unpublished per curiam opinion.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
Unpublished opinions are not binding precedent in this circuit.
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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.
appealability as to the following issues:
(1) whether defense
counsel rendered ineffective assistance in advising Mobley that,
if he went to trial and was convicted, a mandatory life sentence
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.
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
appealability was granted.
Mobley joins in the Government’s
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
shall . . . grant
hearing thereon, determine the issues and make findings of fact
An evidentiary hearing in open court is required
when a movant presents a colorable Sixth Amendment claim showing
determination is necessary to resolve the issue.
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.
This court reviews a district court’s refusal to conduct
an evidentiary hearing for an abuse of discretion.
Polk, 453 F.3d 567, 582 (4th Cir. 2006).
proffered by Mobley and by defense counsel — and the parties’
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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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.
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
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2012).
When the district court denies
(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
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claim of the denial of a constitutional right.
Slack, 529 U.S.
We conclude that Mobley fails to make the requisite
certificate of appealability and dismiss the appeal in part.
this court and argument would not aid the decisional process.
VACATED IN PART AND REMANDED WITH INSTRUCTIONS;
DISMISSED IN PART
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