PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
        __________________________

                 No. 14-3929
         __________________________

       UNITED STATES OF AMERICA,
                        Appellant

                       v.

             REGINA TOLLIVER,
              ______________

   ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT
               OF PENNSYLVANIA
      (D.C. Crim. No.: 2-08-cr-00026-001)
      District Judge: Hon. Berle M. Schiller
                  _____________

             Argued May 21, 2015
               ______________

   Before: FUENTES, GREENAWAY, JR., and
           NYGAARD, Circuit Judges.

       (Opinion Filed: September 1, 2015)
      ZANE DAVID MEMEGER
      United States Attorney
      United States Attorney’s Office
      615 Chestnut Street, Suite 1250
      Philadelphia, PA 19106

      ROBERT A. ZAUZMER [ARGUED]
      Assistant United States Attorney
      Chief of Appeals


      K.T. NEWTON
      Assistant United States Attorney
            Counsel for Appellant

      MATTHEW STIEGLER, Esq. [ARGUED]
      Post Office Box 18861
      Philadelphia, PA 19119
            Counsel for Appellee

                        ______________

                           OPINION
                        ______________


GREENAWAY, JR., Circuit Judge.

I.    INTRODUCTION

      The Government appeals the District Court’s grant of
Regina Tolliver’s (“Appellee” or “Tolliver”) 28 U.S.C.
§ 2255 motion. Because material facts are in dispute




                                2
surrounding Tolliver’s ineffective assistance of counsel
(“IAC”) allegations based on her trial counsel’s failure to
investigate, the District Court abused its discretion in granting
the § 2255 motion without first holding an evidentiary
hearing. As such, we will vacate and remand, so that a
hearing may be held.

II.    FACTUAL AND PROCEDURAL BACKGROUND

       Between March and November 2007 fraudulent checks
in the amount of $181,577 were cashed against the accounts
of seven Citizens Bank customers in branches in upstate New
York, western Pennsylvania, and Delaware. Citizens Bank
senior fraud investigator Todd Swoyer ran a report for each of
the compromised accounts and discovered that Tolliver’s
employee number was the only one used to access all seven
of the customer accounts; the accounts were accessed on
February 5 and 8, 2007, and on March 7, 8, and 9, 2007.
Employee attendance records confirmed that only Tolliver
and branch assistant manager Angela Anderson worked on all
of these days. Tolliver’s logbook did not indicate that she
was assigned to contact any of these account holders for sales
purposes on those dates or that she did, in fact, contact them.

        Swoyer, United States Postal Inspector Frank Busch,
and a Secret Service agent interviewed Tolliver on March 15,
2007. At trial, Swoyer testified that he reviewed Tolliver’s
entire logbook with her during her interview and that the only
passwords in her logbook were for HR Express, a system
unrelated to the systems used to access customer data.
Further, he testified that Tolliver told him that she had not
given her password to anyone and that she always logged off
her computer when she walked away from a terminal. All




                                   3
seven of Tolliver’s former co-workers who testified said they
never knew Tolliver’s password or saw it written down.

       A jury convicted Tolliver of bank fraud in violation of
18 U.S.C. § 1344, aggravated identity theft in violation of 18
U.S.C. §§ 1028A(a)(1), (c)(5), and 2, and unauthorized use of
a computer in violation of 18 U.S.C. § 1030. The District
Court denied a motion for acquittal or new trial. At the
sentencing hearing, the District Court imposed a below-
Guidelines sentence of 30 months’ imprisonment, a five-year
term of supervised release, and ordered Tolliver to pay
$181,577 in restitution and a special assessment of $900. We
affirmed on direct appeal, 451 F. App’x 97 (3d Cir. 2011),
cert. denied, 

(2012).

       In September 2013, Tolliver, represented by newly
appointed counsel, filed a 28 U.S.C. § 2255 motion and on
March 10, 2014, filed an amended motion. Tolliver claimed
that her trial counsel was ineffective for various reasons,
including his failure to investigate her case.1 She asserted
that subsequent investigations undertaken by her new counsel
and by her private investigator, Diane Cowan, had uncovered
evidence that established that she was prejudiced by her trial

      1
          Tolliver also alleged IAC based on her trial
counsel’s: 1) failure to cross-examine prosecution witnesses
adequately; 2) failure to prepare the character witnesses; 3)
instruction that Tolliver not testify; 4) failure to object to
prosecutorial misconduct; and 5) failure to prepare a
sentencing memorandum. Because the District Court did not
address these claims, we will not consider them here.




                                 4
counsel’s ineffectiveness. Tolliver presented this evidence as
exhibits to her § 2255 motion, including: 1) documents
reflecting that two of her Citizens Bank co-workers had
financial difficulties and 2) affidavits asserting that additional
co-conspirators, including the “ringleader” Miguel Bell and
his “right hand man” Christopher Russell, denied knowing
Tolliver. Tolliver also asserted that her co-workers Angela
Anderson and Linda Carter knew Tolliver’s password.
Tolliver sought release or a new trial; or, in the alternative, an
evidentiary hearing.

        Magistrate Judge Jacob P. Hart issued his Report and
Recommendation “recommend[ing] that the motion be denied
without an evidentiary hearing,” and concluding that the
“motion, files and records show conclusively that the prisoner
is entitled to no relief.” 

The District Court did not
adopt the Report and Recommendation and instead granted
the § 2255 motion without holding a hearing and ordered a
new trial. Specifically, the District Court stated:

        The verdict against Tolliver, which relied
        solely on the use of her employee identification
        number, was only weakly supported by the
        record. On these facts, it was not appropriate
        to decline to find prejudice simply because the
        information which trial counsel failed to
        discover was something less than a smoking
        gun.

United States v. Tolliver, No. 08-026, 

, at *8 (E.D. Pa. July 15, 2014). In reaching this
conclusion, the District Court found “that several of
Tolliver’s co-workers, particularly Anderson, had pressing
financial needs” and stated that “although counsel argued to




                                   5
the jury that the prosecution lacked evidence that the other
participants in the fraud knew Tolliver, he was not able to
argue affirmatively that they denied knowing her, because he
did not interview any of them.” 

The District
Court did not comment on Tolliver’s assertion that Anderson
knew her password or the fact that this assertion directly
contradicted a prior statement by Tolliver and the testimony
of all of her co-workers.

      Tolliver was ordered released on bail on July 17, 2014,
and a new jury trial was set for October 6, 2014. The
Government filed this appeal on September 15, 2014.

III.   ANALYSIS

        The District Court had jurisdiction to consider
Tolliver’s 28 U.S.C. § 2255 motion pursuant to that statute.
We have jurisdiction pursuant to 28 U.S.C. § 1291. See
United States v. Allen, 

, 1250 (3d Cir. 1980)
(holding that “the grant of a new trial is a final, appealable
order in proceedings under § 2255”). “[T]he district court
abuses its discretion if it fails to hold an evidentiary hearing
when the files and records of the case are inconclusive as to
whether the movant is entitled to relief.” United States v.
Booth, 

, 546 (3d Cir. 2005). “It is irrelevant
whether the Government or [movant] requested the hearing
because § 2255 requires the District Court to hold a hearing
sua sponte when, as here, the files and records do not show
conclusively that [the movant] was not entitled to relief.”
Solis v. United States, 

, 294 (3d Cir. 2001).




                                  

U.S.C. § 2255 Legal Standards

        28 U.S.C. § 2255(b) states: “Unless the motion and
the files and records of the case conclusively show that the
prisoner is entitled to no relief, the court shall cause notice
thereof to be served upon the United States attorney, grant a
prompt hearing thereon, determine the issues and make
findings of fact and conclusions of law with respect thereto.”
We have interpreted this to mean that where a “‘petition
allege[s] any facts warranting relief under § 2255 that are not
clearly resolved by the record, the District Court [is]
obligated to follow the statutory mandate to hold an
evidentiary hearing.’” 

(quoting
United States v. McCoy, 

, 134 (3d Cir. 2005)).

       Though the germane precedents all involve cases
wherein a district court denied a § 2255 motion without first
holding an evidentiary hearing, they apply with equal force
here — where the District Court granted Tolliver’s § 2255
without first holding a hearing. The same standard applies so
that a district court abuses its discretion if, in the face of
disputes of material fact, it grants or denies a § 2255 motion
without first holding an evidentiary hearing.

        A district court considering a § 2255 motion “‘must
accept the truth of the movant’s factual allegations unless
they are clearly frivolous on the basis of the existing record.’”

(quoting Gov’t of V.I. v. Forte, 

, 62 (3d
Cir. 1989)). In the IAC context, a movant need only “raise[]




                                   7
sufficient allegations” that his counsel was ineffective in
order to warrant a hearing.2 

       2
         The familiar Strickland standard governs whether a
§ 2255 movant has established an IAC claim. Strickland v.
Washington, 

, 687 (1984). The first prong
requires the movant to show “that counsel made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” 

Strickland’s second prong, the movant must “show[]
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” 

to “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceedings
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” 

The Government does not appear to
dispute that the first Strickland prong is met. Tolliver’s trial
counsel signed an affidavit stating that he failed to perform
any investigation and relied solely on records turned over by
the prosecution. App. at 577 (“They could not afford to hire a
private investigator. . . .”). Tolliver’s trial counsel also
admitted that he did not interview any witnesses. 

not interview witnesses myself to keep from becoming a
witness in my own case, so I was not able to interview any
witnesses before trial.”). “‘[F]ailure to investigate a critical
source of potentially exculpatory evidence may present a case
of constitutionally defective representation.’” United States
v. Travillion, 

, 293 n.23 (3d Cir. 2014) (quoting
United States v. Baynes, 

, 69 (3d Cir. 1980)).




                                   8
      B.     Disputed Material Facts

       The following evidence, put forth by Tolliver in her
§ 2255 motion, creates disputes of material fact such that a
hearing is necessary before the District Court can address
Tolliver’s underlying claim that her trial counsel was
constitutionally ineffective.

             1.     Co-Workers’ Financial Troubles

        Tolliver presented evidence that her co-workers
Angela Anderson and Linda Carter experienced financial
difficulties and asserted that their troubles occurred around
the time of the fraud. For instance, exhibits attached to
Tolliver’s § 2255 motion show that a foreclosure suit was
initiated against Anderson on March 6, 2006 and discontinued
on April 3, 2006. The exhibits also show that Discover Bank
initiated a suit against Anderson on August 23, 2005 alleging
that Anderson owed a balance of $5,944.65; this suit was
discontinued on January 12, 2007. Other exhibits attached to
Tolliver’s amended § 2255 motion show that Carter was sued
by a school district for unpaid school taxes in the amount of
$6,164.54. The school district suit against Carter was filed on
June 28, 2007, and she satisfied her debt by February 29,
2008. Tolliver argues that this evidence establishes that her
co-workers had a stronger motive than she to commit the
Citizens Bank fraud.

             2.     Not Known by Co-Conspirators

       Tolliver appended affidavits to her § 2255 motion
from co-conspirators Miguel Bell and Christopher Russell
asserting that they do not know her. Tolliver also submitted
affidavits from Cowan (her private investigator), which state




                                  9
that five identified co-conspirators allegedly informed Cowan
that they did not know Tolliver (Rashin Owens, Victor
O’Connor, Elton Harris, Michael Merin, and Tiffany Brodie),
however these individuals either refused or failed to complete
an affidavit to that effect.3

      Tolliver argues that this evidence establishes that she
could not have taken part in the Citizens Bank fraud.
However, as the Government argues in its Reply Brief, no
one has asserted or established that each of the middle men
involved in this fraud was apprehended. Reply Br. at 9.
Additionally, nothing in the Bell and Russell affidavits
suggests that they necessarily would have known Tolliver if
she had been involved in the fraud.

              3.     An Evidentiary Hearing Is Required

       Based on Tolliver’s newly presented evidence, the
District Court concluded: 1) that “a reasonable probability
clearly exists that, if the jury knew that several of Tolliver’s
co-workers, particularly Anderson, had pressing financial
needs which Tolliver lacked, it could have changed the

       3
          To satisfy the prejudice prong of Strickland the
movant “must establish a reasonable probability — one
sufficient to undermine our confidence in the outcome — that
the jury’s verdict would have been different if not for
counsel’s errors. Such a showing may not be based on mere
speculation about what the witnesses [the attorney] failed to
locate might have said.” United States v. Gray, 

,
712 (3d Cir. 1989) (internal citations omitted).




                                  10
outcome at trial”; and 2) that “it is now clear that not even
those identified as ‘insiders’ knew [Tolliver],” a fact that, had
it been known by trial counsel, “would have meaningfully
strengthened his defense.” Tolliver, 

, at *8–9.

       The problem with these conclusions is that the District
Court failed to follow the procedure put forth in
§ 2255: where there are disputes of material fact, the first
step is to hold an evidentiary hearing. Only then, after
Tolliver’s factual assertions have been tested, is the District
Court in the position to assess the merits of her underlying
IAC claim and to grant or deny her § 2255 motion. It was an
abuse of discretion for the District Court not to hold a hearing
to resolve these disputes before granting Tolliver’s § 2255
motion.4 

.

       4
          The District Court did not specifically address
Tolliver’s contention that her password was not, in fact,
secure and was known by her co-workers, including
Anderson. However, at trial, the Government presented
evidence that, when interviewed by Swoyer and Busch,
Tolliver stated that she complied with Bank policy by not
writing down her password and keeping it secret from her co-
workers. Tolliver specifically told Swoyer and Busch that
she kept a list of her passwords for other programs (e.g., the
HR system), but, in keeping with the Bank’s policy, did not
write down her password for accessing customer data.
Additionally, as the District Court noted when it denied
Tolliver’s post-trial motion for acquittal, “all of Defendant’s
former co-workers who testified at trial stated that they did
not know Defendant’s password.” App. at 52. This is an
additional disputed material fact that must be addressed at an




                                  11
IV.   CONCLUSION

       For the foregoing reasons we will vacate and remand
with instructions that the District Court hold an evidentiary
hearing to resolve the disputes of material fact.




evidentiary hearing. The materiality of whether Tolliver’s
password was secret is underscored by Swoyer’s testimony
on cross-examination that he was not aware of a single bank
fraud conspiracy where an employee’s password was
compromised and used by a co-worker to commit a fraud.




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