UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-6806


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

ANTHONY PENDER,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, Chief District
Judge. (8:06-cr-00083-DKC-1; 8:09-cv-00034-DKC)


Submitted:   February 15, 2013              Decided:   March 20, 2013


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Anthony Pender, Appellant Pro Se. David Ira Salem, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Anthony   Pender      appeals    from    the   denial   of   his    28

U.S.C.A. § 2255 (West Supp. 2012) motion.                We previously granted

a certificate of appealability on the issue of whether Pender

received effective assistance of counsel in relation to plea

bargaining negotiations.            After additional briefing, we vacate

the district court’s order and remand for further proceedings.

              To succeed on his ineffective assistance claim, Pender

must show that: (1) counsel’s failures fell below an objective

standard       of   reasonableness       and     (2)     counsel’s      deficient

performance was prejudicial.            See Strickland v. Washington, 

, 687 (1984).          The Supreme Court recently addressed the

standard      for   showing   ineffective      assistance      during   the     plea

bargaining stage in Lafler v. Cooper, 

 (2012),

and Missouri v. Frye, 

 (2012).                    In Lafler, the

Court held that the Sixth Amendment right to counsel applies to

the plea bargaining process and prejudice occurs when, absent

deficient advice, the defendant would have accepted a plea that

would have resulted in a less severe conviction, sentence, or

both.        Lafler, 132 S. Ct. at 1384-85.              In Frye, the Supreme

Court held that a component of the Sixth Amendment right to

counsel in the plea bargaining context is that counsel has a

duty    to    communicate     any   offers    from     the   Government    to    his

client.      Frye, 132 S. Ct. at 1408.

                                         2
            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 of law with respect thereto.”                                28 U.S.C.

§ 2255(b).        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       in       order     to     resolve      the   issue.

United States v. Witherspoon, 

, 926-27 (4th Cir.

2000).      We    review      a    district          court’s       refusal    to    conduct    an

evidentiary      hearing      for     an    abuse       of    discretion.           Conaway    v.

Polk, 

, 582 (4th Cir. 2006).

            Here, the district court recognized that an issue of

fact existed.          Specifically, Pender averred that his attorney

failed to seek a plea bargain even though the evidence against

him was quite strong and he faced a mandatory life sentence if

convicted.       Without submitting an affidavit from defense counsel

or   the    Assistant         United        States       Attorney,           the    Government

responded      that    Pender       was    in    fact    offered       a     beneficial     plea

agreement but he turned it down. 1                           The court concluded that,



     1
       In his notice of appeal and in his informal brief, Pender
states that he had no knowledge of this plea offer.     However,
(Continued)
                                                 3
regardless of how the factual dispute was resolved, there was no

ineffective assistance.        We find, to the contrary, that Pender

alleged      sufficient   facts    to   state    a   claim   of   ineffective

assistance.      Because these facts are in dispute, a hearing was

necessary before ruling on the case.

             When the district court decided Pender’s motion, it

had before it Pender’s sworn assertion that his counsel failed

to pursue a plea agreement when faced with a very weak case for

trial and a mandatory life sentence upon conviction.                The court

also   had    the   Government’s   unsworn,      unauthenticated    assertion

that Pender had been offered a plea agreement that he personally

rejected.      The district court correctly noted that there is no

constitutional right to a plea agreement and that the decision

to initiate plea negotiations is a strategic decision within the

purview of defense counsel.         See Weatherford v. Bursey, 

, 561 (1977); Hawkman v. Parratt, 

, 1171 (8th

Cir.   1981).       However,   counsel      is   still   required   to   be   a

“reasonably effective advocate” regarding the decision to seek a

plea bargain.       Brown v. Doe, 

, 1246 (2d Cir. 1993).

Thus, if Pender could show, as he alleged, that there was no

reasoned strategy to his attorney’s decision not to pursue a



these allegations were not before the district court because
Pender did not respond to the Government’s answer.



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plea bargain, we conclude that Pender would have satisfied the

first Strickland prong and shown that his attorney’s actions

were unreasonable.

              The    record      in    this    case    showed        that   drugs    and    a

firearm were found in Pender’s bedroom closet, a closet which

contained his possessions.              Pender’s defense at trial to charges

of possession with intent to distribute the drugs and possession

of the firearm was that his girlfriend had access to and shared

the closet with him and the drugs and firearm could have just as

easily been hers.             See United States v. Pender, No. 06-5283 (4th

Cir.   Jan.    11,    2008)      (unpublished).              While    counsel     may   have

reasonably     believed         that    this       defense    was    strong      enough    to

forego    pursuing        a    plea    bargain      even     with    a   mandatory      life

sentence on the line, there is no affidavit from counsel in the

record,    and      the   district       court      was    then      left   to   guess     at

counsel’s motives and strategy, if any.

              While counsel does not have a general duty to initiate

plea negotiations, here there is no evidence that counsel was

acting reasonably or strategically, and the decision to forego

plea bargaining exposed Pender to a mandatory life sentence.                               We

find that the record and Pender’s presumably true allegations

considered together were sufficient to raise a material issue of

fact as to whether Pender’s attorney’s actions were unreasonable



                                               5
in failing to pursue plea negotiations. 2              Moreover, this is a

unique case because the Government concedes that a plea bargain

with a beneficial sentence would have been (or was) offered had

counsel pursued it.       As such, assuming his attorney unreasonably

failed to pursue plea bargaining and given that Pender avers

that he would have accepted such a plea, Pender has shown that

he was prejudiced by his attorney’s actions.

            Thus, we vacate the district court’s order and remand

so   that    the   district     court   can   either   hold   a     hearing   or

otherwise further develop the record before ruling.                 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




     2
       Of course, given the Government’s response and Pender’s
allegations in his informal brief, it does not appear that, had
a hearing been held, this would have been the issue under
consideration. Instead, the court would likely have been faced
with a factual dispute as to whether Pender was at the plea
offer meeting and, if not, whether his attorney communicated the
offer to him. Nonetheless, as the Government notes, this issue
cannot be considered on appeal because it was not timely raised
before the district court.



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