United States v. Jackson

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 01-7668 RAYMOND LEROY JACKSON, Defendant-Appellant.  Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (CR-98-437-A, CA-01-214-A) Submitted: February 25, 2002 Decided: February 10, 2003 Before WIDENER, WILKINS, and LUTTIG, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. COUNSEL Raymond Leroy Jackson, Appellant Pro Se. Joan H. Hogan, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia; Laura C. Marshall, OFFICE OF THE UNITED STATES ATTOR- NEY, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 2 UNITED STATES v. JACKSON OPINION PER CURIAM: Raymond Leroy Jackson appeals from the dismissal of his 28 U.S.C.A. § 2255 (West Supp. 2001) motion, attacking his conviction and sentence for violating 18 U.S.C. § 1512(a)(1) (1994). We vacate and remand for further proceedings. Jackson’s claim that his counsel was ineffective for failing to file a notice of appeal following his sentencing was rejected by the district court upon a finding that Jackson failed to show prejudice. This find- ing was erroneous, however, under this court’s decision in United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993). In Peak, we held that counsel’s failure to pursue an appeal requested by a defendant consti- tutes 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). Accordingly, we grant a certificate of appealability and vacate the district court’s order and remand for compliance with this opinion and Peak. We decline to address any other claims on appeal. We dispense with oral argument because the facts and legal contentions are ade- quately presented in the materials before the court and argument would not aid the decisional process. VACATED AND REMANDED