UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-7952
BENJAMIN DELANO KIRBY, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CR-99-463, CA-01-631-AMD)
Submitted: April 22, 2002
Decided: May 31, 2002
Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Benjamin Delano Kirby, Jr., Appellant Pro Se. Harvey Ellis Eisen-
berg, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. KIRBY
OPINION
PER CURIAM:
Benjamin Kirby appeals from the dismissal of his 28 U.S.C.A.
§ 2255 (West Supp. 2001) motion, attacking his conviction and sen-
tence for violating 21 U.S.C.A. § 841(a)(1) (West 1999 & Supp.
2001). We vacate and remand for further proceedings.
Kirby’s claim that his counsel was ineffective for failing to file a
notice of appeal after being requested to do so following Kirby’s sen-
tencing was rejected by the district count because Kirby waived his
appellate rights. Under this court’s decision in United States v. Peak,
992 F.2d 39, 42 (4th Cir. 1993), we find the district court’s dismissal
of this claim to be in error. In Peak, we held that counsel’s failure to
pursue an appeal requested by a defendant constitutes ineffective
assistance of counsel regardless of the likelihood of success on the
merits. Id. Thus, if counsel promises to note an appeal and then fails
to do so, petitioner is entitled to relief in the form of a belated appeal.
Id.; see also Roe v. Flores-Ortega, 528 U.S. 470 (2000).
We note that this case differs from Peak in that the parties dispute
whether Kirby directed his counsel to file a notice of appeal. Further,
the record is unclear as to whether or not Kirby’s counsel consulted
with him regarding an appeal. Even if a defendant does not specifi-
cally instruct counsel to appeal, counsel may still have a duty to con-
sult with his client about an appeal. Roe, 528 U.S. at 478. These
issues must be addressed in the first instance by the district court.
Accordingly, we grant a certificate of appealability and vacate the
district court’s order and remand for compliance with this opinion,
Peak, and Roe. We decline to address any other claims on appeal. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
VACATED AND REMANDED