UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7766
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LUTHER MOORE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CR-03-399; CA-04-1233-1)
Submitted: September 29, 2006 Decided: October 26, 2006
Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
Vacated in part, dismissed in part, and remanded by unpublished per
curiam opinion.
Luther Moore, Appellant Pro Se. Mark Alex Grider, Jill M. Cassara,
Randall Conner, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Luther Moore seeks to appeal the district court’s order
denying relief on his 28 U.S.C. § 2255 (2000) motion. Deferring
action on the remainder of the appeal, we granted a certificate of
appealability on a single claim of ineffective assistance of
counsel in which Moore alleged that he was denied the right to a
direct appeal when counsel failed to comply with his 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 denied
relief on this claim and remand for further proceedings on this
issue.
Moore pled guilty to conspiracy to distribute cocaine
base, and was sentenced to eighty-seven months’ imprisonment. He
did not appeal. In his § 2255 motion, which was sworn and verified
in compliance with 28 U.S.C. § 1746 (2000), Moore claimed that he
requested his counsel to file a notice of appeal at the conclusion
of his sentencing hearing. Moore’s counsel, however, stated in an
affidavit that Moore did not request an appeal until approximately
nine months after sentencing.
“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. When a movant presents a
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colorable Sixth Amendment claim showing disputed facts beyond the
record and a credibility determination is necessary to resolve the
issue, an evidentiary hearing in open court is required. See
United States v. Witherspoon, 231 F.3d 923, 925-27 (4th Cir. 2000).
An attorney’s failure to file a requested notice of appeal 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). In light of Moore’s claim, under penalty of
perjury, that counsel failed to honor his request to file an
appeal, and counsel’s conflicting affidavit denying that Moore
timely asked him to note an appeal, we find that there is a genuine
issue of material fact concerning whether Moore was denied
effective assistance of counsel.
Accordingly, we vacate that portion of the district
court’s order denying relief on this claim and remand for further
proceedings as to this issue.* After independently reviewing the
record on Moore’s remaining claims, we conclude Moore has not made
the requisite showing and consequently deny a certificate of
appealability and dismiss the appeal as to those claims.
*
By this disposition, we indicate no view as to the
appropriate outcome of the proceedings on remand.
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We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
VACATED IN PART,
DISMISSED IN PART,
AND REMANDED
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