UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-7158
OSCAR MILLER, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
Malcolm J. Howard, District Judge.
(CR-97-67-7-H, CA-99-52-7-H)
Submitted: March 28, 2000
Decided: May 18, 2000
Before WIDENER, MURNAGHAN, and KING, Circuit Judges.
_________________________________________________________________
Dismissed in part and vacated and remanded in part by unpublished
per curiam opinion.
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COUNSEL
Oscar Miller, Jr., Appellant Pro Se. Fenita Morris Shepard, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Oscar Miller, Jr. appeals from the district court's denial of his
motion for post conviction relief pursuant to 28 U.S.C.A. § 2255
(West Supp. 1999). As to Miller's assertion that he received ineffec-
tive assistance of counsel because his attorney failed to note a
requested appeal, we grant a certificate of appealability, vacate the
judgment below, and remand for further proceedings. As to the rest
of his claims, we deny a certificate of appealability and dismiss this
appeal.
Miller's § 2255 motion raised numerous challenges to his guilty
plea and the resulting sentence. In his informal brief before this Court,
Miller has reiterated only one of the claims presented below, his alle-
gation that his attorney provided ineffective assistance. Accordingly,
that is the only issue before this Court. See 4th Cir. R. 34(b).
In the district court, Miller submitted an affidavit in support of his
allegations of ineffective assistance of counsel. Of particular rele-
vance to this appeal is his averment that counsel failed to note an
appeal after Miller asked her to do so. The Government countered this
allegation with an affidavit from Miller's trial attorney denying that
Miller asked her to note an appeal. Based on these materials and the
parties' arguments, the district court granted summary judgment in
favor of the Government.
In so doing, the court erred. Summary judgment is appropriate only
when "there is no genuine issue as to any material fact and if the mov-
ing party is entitled to judgment as a matter of law." Anderson v. Lib-
erty Lobby, Inc., 477 U.S. 242, 250 (1986). In light of the affidavits
in this case, there is a dispute of fact about whether Miller asked his
attorney to note an appeal. This dispute is unquestionably material; a
defense attorney's failure to note an appeal upon request constitutes
ineffective assistance even if the defendant had no meritorious issues
to present. See United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993).
It is ordinarily necessary to conduct an evidentiary hearing to
resolve such disputes. See United States v. Marcum, 16 F.3d 599, 603
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n.4 (4th Cir. 1994) (observing that claims of ineffectiveness ordinarily
cannot be resolved without an evidentiary hearing); see also United
States v. Magini, 973 F.2d 261, 264 (4th Cir. 1992) ("A federal court
in a habeas proceeding must hold an evidentiary hearing when the
petitioner alleges facts which, if true, would entitle her to relief.").
Moreover, Miller's allegations, supported by his affidavit, present "a
substantial showing of the denial of a constitutional right." 28
U.S.C.A. § 2253 (West Supp. 1999). Accordingly, as to Miller's
claim that his attorney failed to note an appeal, we grant Miller's
request for a certificate of appealability, vacate the judgment of the
district court, and remand for further proceedings.
We find no merit in Miller's remaining allegations of ineffective
assistance. His assertions that his attorney misadvised him and was
unprepared for trial are belied by Miller's own statements at the plea
hearing. See United States v. DeFusco, 949 F.2d 114, 119 (4th Cir.
1991); United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).
The record also refutes Miller's contention that his attorney did not
adequately challenge the sentencing court's determination about the
amount of cocaine involved in Miller's offense.
Accordingly, we deny a certificate of appealability and dismiss this
appeal as to all issues save Miller's claim that his attorney failed to
note a requested appeal. As to that issue, we grant a certificate of
appealability, vacate the district court's judgment, and remand for fur-
ther proceedings. 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.
DISMISSED IN PART; VACATED
AND REMANDED IN PART
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