
    UNITED STATES of America, Plaintiff-Appellee, v. Kerry Gordon HOGGE, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Kerry Gordon Hogge, Defendant-Appellant.
    Nos. 99-403, 01-6873.
    United States Court of Appeals, Fourth Circuit.
    Submitted Sept. 20, 2001.
    Decided Jan. 24, 2002.
    Stephen Ashton Hudgins, Hudgins & Stallings, P.C., Newport News, Virginia, for Appellant. Janet S. Reincke, Office of the United States Attorney, Norfolk, Virginia, for Appellee.
    Before WILKINS, WILLIAMS, and KING, Circuit Judges.
   OPINION

PER CURIAM.

Kerry Gordon Hogge appeals from the district court’s order denying his motion filed under 28 U.S.C.A. § 2255 (West Supp. 2001). For the reasons that follow, we grant a certificate of appealability and vacate and remand for further proceedings.

In the district court below, Hogge made several allegations of ineffective assistance of counsel including whether counsel failed to file a petition for certiorari from this court’s affirmance of his convictions and sentence. See United States v. Jones, No. 99-4032, 1999 WL 957706 (4th Cir. Oct. 19, 1999) (unpublished). Specifically, Hogge alleged by affidavit that his § 2255 motion filed on March 15, 2001, was filed beyond the one-year period allowed under the statute because: Hogge’s counsel told him he was filing a petition for certiorari on October 22, 1999; counsel neglected to inform Hogge that he decided not to file the petition; Hogge relied on counsel’s representations that counsel was filing such a petition and thus delayed filing his § 2255 motion. After Hogge discovered in February 2001 that counsel failed to file the petition, he filed the instant § 2255 motion on March 15, 2001.

The district court did not address Hogge’s claims of ineffective assistance on the merits. Rather, the court found, without conducting an evidentiary hearing, that Hogge should have discovered, through the exercise of due diligence under 28 U.S.C.A. § 2255(4), that his counsel failed to file the certiorari petition. The court reasoned that because Hogge’s counsel only had ninety days within which to file the petition for certiorari, Hogge should have been able to discover counsel’s failure to file the petition within that time period. Thus, the court found that the limitations period began to run on January 17, 2000 (ninety- days after this court’s affirmance of Hogge’s conviction), and therefore the one-year period for filing a § 2255 motion expired on January 17, 2001.

Unless it is clear from the pleadings, files, and records that the prisoner is entitled to no relief, § 2255 makes a hearing mandatory. Raines v. United States, 423 F.2d 526, 529 (4th Cir.1970). Accordingly, we vacate and remand for a factual hearing to determine at what point in time that Hogge, through the exercise of due diligence, should have discovered his counsel’s failure to file a petition for certiorari. 28 U.S.C.A. § 2255(4). If the district court finds that Hogge’s § 2255 motion was timely filed, then it should address Hogge’s other claims of ineffective assistance including whether counsel complied with the dictates of Roe v. Flores-Ortega, 528 U.S. 470, 476-77, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).

We deny Hogge’s “motion to vacate and reenter judgment” in No. 99-4032 as moot because it seeks the same relief as the instant appeal of Hogge’s § 2255 motion, and we decline to address the other issues raised in this appeal. 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.  