UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7718
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JASMINE ROCHELLS ROBESON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-02-140; CA-04-335-3-2MU)
Submitted: October 21, 2005 Decided: January 13, 2006
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Vacated in part and remanded by unpublished per curiam opinion.
Jasmine Rochells Robeson, Appellant Pro Se. Kimlani S. Murray,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jasmine Rochells Robeson appealed from the district
court’s order denying relief on her motion asserting numerous
claims under 28 U.S.C. § 2255 (2000). Deferring action on the
remainder of the appeal, this court granted a certificate of
appealability on a single claim of ineffective assistance of
counsel in which Robeson alleged that she was denied the right to
a direct appeal when counsel failed to comply with her request to
file a notice of appeal. For the reasons that follow, we now
vacate the district court’s order to the extent that it implicitly
denied relief on this claim and remand for further proceedings on
this issue.
Robeson pled guilty without a plea agreement to one count
of conspiracy to possess with intent to distribute fifty grams of
cocaine base, in violation of 21 U.S.C. §§ 841(a)(l), 846 (2000).
The district court sentenced her to 121 months in prison. Robeson
did not file a direct appeal.
Pursuant to 28 U.S.C. § 2255, Robeson filed a motion to
vacate, set aside, or correct her sentence alleging: (1) her
guilty plea was not knowing and voluntary because she was unaware
that she would face ten years in prison; (2) her conviction was
obtained by use of illegally seized evidence because authorities
claimed to have a search warrant but never showed it to her; and
(3) counsel was ineffective for failing to assist her in
cooperating with the government in order to obtain a lower
sentence. Ten days after filing her initial § 2255 motion, Robeson
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filed a second § 2255 motion asserting two additional claims: (4)
her conviction was improperly based on the total weight of the
substance seized, rather than on the pure drug weight; and (5) she
was denied the right to appeal because counsel ignored her specific
request to note an appeal. The district court denied relief under
§ 2255 without obtaining a response from the government. The court
addressed the three claims raised in Robeson’s initial § 2255
motion, but did not address the two claims raised in the later
motion.1 Robeson timely appealed.2
We find that Robeson amended her initial § 2255 motion
as of right under Rule 15(a) of the Federal Rules of Civil
Procedure because she filed the second § 2255 motion only ten days
after filing the first motion and before a responsive pleading was
filed. The district court’s failure to address the claims raised
in the amended § 2255 motion amounted to a denial of those claims.
Voliva v. Seafarers Pension Plan, 858 F.2d 195, 197 (4th Cir.
1988).
In the second § 2255 motion, signed under penalty of
perjury, Robeson claims that she told her attorney that she wished
to appeal but that counsel failed to comply with her request. The
government disputes Robeson’s claim, citing to counsel’s affidavit
denying that Robeson asked her to file a notice of appeal.
1
The second § 2255 motion is included in the district court’s
civil pleadings file, but does not appear in the district court’s
criminal pleadings file.
2
Robeson asserts Claims 1, 2, 3, and 5, in her informal
appellate brief, abandoning Claim 4. See 4th Cir. R. 34(b).
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In order to establish a Sixth Amendment violation based
on counsel’s failure to appeal, Robeson must prove that (1) counsel
was ineffective and (2) but for counsel’s ineffectiveness, an
appeal would have been filed. Roe v. Flores-Ortega, 528 U.S. 470,
476-77 (2000). Counsel’s failure to file a notice of appeal when
requested to do so is per se ineffective assistance. United
States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993). In light of
Robeson’s claim, under penalty of perjury, that counsel denied her
request to file an appeal and counsel’s affidavit denying that
Robeson asked her to note an appeal, we find that there is a
genuine issue of material fact concerning whether Robeson was
denied effective assistance of counsel.
Accordingly, we vacate the portion of the district
court’s order implicitly denying relief on this claim and remand
for resolution of this issue. The record will then be returned to
this court for further proceedings on the remaining issues pending
on appeal.
VACATED IN PART AND REMANDED
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