UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6252
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHNNY ANDREAS SAVVA, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
District Judge. (CA-04-241; CR-02-280)
Submitted: January 9, 2006 Decided: February 7, 2006
Before NIEMEYER and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Johnny Andreas Savva, Jr., Appellant Pro Se. Rudolf A. Renfer,
Jr., Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Johnny Andreas Savva, Jr. appeals the district court’s
order denying relief on his motion filed under 28 U.S.C. § 2255
(2000), in which he claimed he received ineffective assistance of
counsel because his attorney failed to appeal his criminal
conviction as requested. We previously granted Savva a certificate
of appealability on the issue of whether the district court erred
by dismissing this claim without holding an evidentiary hearing.
In the same order, we denied a certificate of appealability and
dismissed Savva’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 Savva’s claim that his counsel was
ineffective because she failed to file a notice of appeal as
requested and remand for an evidentiary hearing on that claim.
In his verified motion, Savva contended he was upset
about enhancements he received at sentencing and requested that
counsel file a notice of appeal when they met at the county jail.
However, in an affidavit filed with the district court, counsel
stated that Savva “indicated that he did not wish to appeal,” and
“[t]here was no discussion, no hesitation and no indecisiveness on
his part.” The district court noted counsel’s representations and
concluded, without an evidentiary hearing, that Savva’s “bare
allegations fail[ed] to show that counsel’s representation fell
below an objective standard of reasonableness in any respect.”
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Thus, the court apparently credited the version of events set forth
in Savva’s counsel’s affidavit over the contrasting version of
events described in Savva’s verified complaint.
“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 when a
movant presents a colorable Sixth Amendment claim showing disputed
material facts and a credibility determination is necessary in
order to resolve the issue. See 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 Savva’s claim that counsel was
ineffective for failing to file a notice of appeal as requested
turns on credibility, we vacate and remand for further proceedings
as to that claim.* We dispense with oral argument because the
facts and legal contentions are adequately presented in the
*
By this disposition, we indicate no view as to the
appropriate outcome of the proceedings on remand.
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materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED
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