UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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