UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6093
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES DARRELL DALTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., District
Judge. (CR-02-236; CA-03-1411-6)
Submitted: April 27, 2005 Decided: May 17, 2005
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
James Darrell Dalton, Appellant Pro Se. Kevin Frank McDonald,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Darrell Dalton appeals the district court’s orders
denying relief on his motion filed pursuant to 28 U.S.C. § 2255
(2000) and denying his motion for reconsideration. In the § 2255
motion, Dalton raised several claims, notably that counsel was
ineffective for failing to file a notice of appeal from his
conviction under 18 U.S.C. § 2252A(a)(5)(B) (2000). We previously
entered an order granting Dalton a certificate of appealability on
this issue. In the same order, we denied a certificate of
appealability and dismissed Dalton’s appeal with respect to all
other claims. For the reasons that follow, we vacate the district
court’s order insofar as it denied relief on the notice of appeal
issue and remand for an evidentiary hearing.
In his motion, Dalton contended that he asked his
attorney, Richard Warder, to file a notice of appeal, but Warder
refused. Warder filed an affidavit with the district court stating
that, following Dalton’s guilty plea, Dalton began collecting
evidence that might support a Fed. R. Crim. P. 35(b) motion for
reduction of sentence. Dalton spoke with Warder and others in
Warder’s office, as well as with an Assistant United States
Attorney, about working with the Government in an effort to reduce
his sentence. Warder stated that Dalton was aware that no
meritorious grounds for appeal existed and that pursuing a Rule
35(b) motion likely would better serve him.
- 2 -
Dalton responded with a sworn declaration insisting that
he informed Warder immediately after sentencing that he wished to
appeal. Warder, however, refused to file an appeal because there
were no grounds for appeal.
The district court found that Dalton’s claim was
unsupported by any evidence and contrary to the evidence of record,
including Warder’s affidavit and the affidavit of an FBI agent that
corroborated Warder’s version of events. Thus, the court made a
credibility determination against Dalton.
“Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief, the
court shall . . . grant a prompt hearing thereon, determine the
issues, and make findings of fact and conclusions of law with
respect thereto.” 28 U.S.C. § 2255. A hearing is required if a
credibility determination is necessary in order to resolve an issue
in a § 2255 motion. United States v. Witherspoon, 231 F.3d 923,
925-27 (4th Cir. 2000); Raines v. United States, 423 F.2d 526, 530
(4th Cir. 1970). Failure of an attorney to file a requested notice
of appeal from a criminal conviction is per se ineffective
assistance of counsel. See Roe v. Flores-Ortega, 528 U.S. 470,
476-77 (2000); United States v. Peak, 992 F.2d 39, 42 (4th Cir.
1993).
Because resolution of the ineffectiveness claim turns on
credibility, we vacate and remand for further proceedings. We
- 3 -
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before us and argument
would not aid the decisional process. The motions for bail and to
expand the certificate of appealability to include a claim under
Blakely v. Washington, 124 S. Ct. 2531 (2004), are denied.
VACATED AND REMANDED
- 4 -