UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-6349

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TERRENCE MULLEN,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:14-cr-00587-PWG-1; 8:17-cv-00313-PWG)

Submitted: August 23, 2018 Decided: September 5, 2018

Before NIEMEYER and AGEE, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded with instructions by unpublished per curiam opinion.

Terrence Mullen, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

Terrence Mullen appeals the district court’s order denying relief on his

(2012) motion. The district court granted a certificate of appealability. We affirm

the district court’s order in part, vacate the order in part, and remand for an evidentiary

hearing.

“We review de novo a district court’s legal conclusions in denying a § 2255

motion,” including “any mixed questions of law and fact addressed by the court as to

whether the petitioner has established a valid Sixth Amendment ineffective assistance

claim.” United States v. Ragin,

(4th Cir. 2016). In assessing a § 2255

motion to vacate, “unless the motion and the files and records of the case conclusively

show that the prisoner is entitled to no relief, [a district] court shall . . . grant a prompt

hearing thereon [and] determine the issues and make findings of fact and conclusions of

law with respect thereto.”

(b). “When the district court denies § 2255

relief without an evidentiary hearing, the nature of the court’s ruling is akin to a ruling on

a motion for summary judgment,” and the facts must be considered “in the light most

favorable to the § 2255 movant.” United States v. Poindexter,

(4th

Cir. 2007). We review for abuse of discretion the district court’s decision not to hold an

evidentiary hearing to resolve an issue presented in a § 2255 motion. Gordon v. Braxton,

(4th Cir. 2015); Raines v. United States,

(4th Cir.

1970).

Mullen’s first claim is that counsel was ineffective in failing to fully investigate

his mental health and to file a motion for a downward departure under U.S. Sentencing

2 Guidelines Manual §§ 4A1.3, p.s., 5H1.3, p.s., & 5K2.13, p.s. (2015) (“the sentencing

claim”). To succeed on his ineffective assistance of counsel claim, Mullen must

demonstrate that (1) his counsel’s performance was constitutionally deficient and (2) that

this deficient performance prejudiced his defense. Strickland v. Washington,

(1984). With respect to the performance prong, we must “apply a

strong presumption that counsel’s representation was within the wide range of reasonable

professional assistance.” Harrington v. Richter,

(2011) (internal

quotation marks omitted). Mullen bears the burden “to show that counsel made errors so

serious that counsel was not functioning as the counsel guaranteed [him] by the Sixth

Amendment.” Christian v. Ballard,

(4th Cir. 2015) (internal quotation

marks omitted). To demonstrate prejudice, Mullen must show “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland,

. We conclude that the district court correctly

determined that Mullen failed to demonstrate prejudice. Accordingly, we affirm the

district court’s disposition of the sentencing claim for the reasons stated by the district

court. United States v. Mullen, Nos. 8:14-cr-00587-PWG-1; 8:17-cv-00313-PWG (D.

Md. Jan. 23, 2018).

Mullen also claims that counsel had a conflict of interest because of a fee dispute

(“the conflict claim”). * To establish a claim of ineffective assistance based upon a

* In addition, Mullen raises two claims for the first time on appeal: that counsel was ineffective in failing to request a competency hearing and that the district court erred in calculating his criminal history. Because Mullen did not raise these claims in the (Continued) 3 conflict of interest, a movant must show that: (1) counsel labored under an “actual

conflict of interest” and (2) the conflict adversely affected counsel’s performance.

United States v. Dehlinger,

(4th Cir. 2014) (internal quotation marks

omitted). “These requirements are often intertwined.” United States v. Stitt,

(4th Cir. 2008) (internal quotation marks omitted). If the movant satisfies this

showing, “prejudice is presumed and nothing more is required for relief.” United States

v. Nicholson,

(4th Cir. 2010).

“Although a defendant’s failure to pay fees may cause some divisiveness between

attorney and client, courts generally presume that counsel will subordinate his or her

pecuniary interests and honor his or her professional responsibility to a client.” Caderno

v. United States,

, 1219 (11th Cir. 2001) (internal quotation marks

omitted). Here, however, we conclude that the district court correctly determined, on the

record before it, that the fee dispute in this case rose to the level of an actual conflict. See

Stitt,

.

To establish that this conflict of interest adversely affected counsel’s performance,

Mullen must satisfy, by a preponderance of the evidence, a three-part standard. Mickens

v. Taylor,

(4th Cir. 2001) (en banc); see also Nicholson,

(applying Mickens in § 2255 proceeding). First, Mullen “must identify a plausible

alternative defense strategy or tactic that his defense counsel might have pursued.”

district court, he has forfeited appellate review of these issues. See In re Under Seal,

(4th Cir. 2014).

4 Mickens,

. Second, Mullen “must show that the alternative strategy or

tactic was objectively reasonable under the facts of the case known to the attorney at the

time of the attorney’s tactical decision.”

In order to satisfy the second prong, Mullen

“must show that the alternative strategy or tactic was clearly suggested by the

circumstances.”

(internal quotation marks omitted). Finally, Mullen “must establish

that the defense counsel’s failure to pursue that strategy or tactic was linked to the actual

conflict.”

The district court concluded that Mullen satisfied the first and third part of this

test, but that he failed to satisfy the second prong. However, we are constrained to

conclude that the record before us fails to conclusively show that Mullen is not entitled to

relief on this claim. The district court recognized that counsel was aware of Mullen’s

bipolar disorder and used that information to argue for a lower sentence. The court

concluded that a psychological evaluation would have been cumulative. This analysis,

however, focuses on the prejudice Mullen suffered from counsel’s failure to assist Mullen

in obtaining an evaluation, rather than on what was objectively reasonable at the time

counsel refused to assist Mullen in obtaining the evaluation. When counsel first refused

to assist Mullen in securing an evaluation, counsel could not be certain that the district

court would consider Mullen’s disorder to the degree that it did at sentencing. Moreover,

the text messages that Mullen attached to his motion, unrefuted by the Government,

indicate that counsel had not even reviewed the presentence report with Mullen when

Mullen first requested a psychological evaluation. Additionally, Mullen asked counsel to

secure the evaluation before counsel obtained a continuance because of a death in

5 counsel’s family, and counsel did not request a continuance for Mullen to be evaluated

until the day before the rescheduled sentencing hearing—a request that the district court

denied. Furthermore, counsel’s argument at sentencing focused primarily on Mullen’s

bipolar disorder, suggesting that he recognized that this was the best argument to present

at sentencing. Thus, the record reveals no objective reason for not assisting Mullen in

securing a psychological evaluation or for not requesting a continuance to obtain an

evaluation at an earlier date.

Additionally, we conclude that the current record does not conclusively show that

obtaining an evaluation was not clearly suggested by the circumstances. The PSR placed

counsel on notice that Mullen’s mental health might need to be explored in detail.

Counsel admitted at sentencing that he had a difficult relationship with Mullen and that

he thought this might have been because of Mullen’s mental health. These facts suggest

that counsel should have secured an evaluation. However, we recognize that the text

messages contained in the record, while disconcerting, may not present a complete

picture. Counsel alluded to Mullen lying to him, but the record does not clarify what this

lie may have been. There well may be reasons, based on counsel’s relationship with

Mullen, that prompted counsel to believe that an evaluation was not necessary, but the

record does not allow us to make this determination at this time. Thus, because the

record does not conclusively show that Mullen is not entitled to relief, see

(b), we conclude that an evidentiary hearing is necessary to resolve the conflict

claim.

6 Accordingly, we affirm the district court’s disposition of the sentencing claim,

vacate the court’s disposition of the conflict claim, and remand with instructions to

conduct an evidentiary hearing on the conflict claim. In so doing, we offer no view as to

the proper resolution of the conflict claim, leaving that determination to the district court

in the first instance. We further grant Mullen leave to proceed in forma pauperis. We

dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would not aid the decisional

process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS

7