Filed: February 24, 1998
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-7468
(CR-95-4-JFM, CA-97-992-JFM)
United States of America,
Plaintiff - Appellee,
versus
Anthony Allen Phillips,
Defendant - Appellant.
O R D E R
The Court amends its opinion filed February 9, 1998, as
follows:
On page 3, first paragraph, line 5 -- the sentence is
corrected to begin "A defendant is not required to show . . . ."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-7468
ANTHONY ALLEN PHILLIPS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CR-95-4-JFM, CA-97-992-JFM)
Submitted: January 20, 1998
Decided: February 9, 1998
Before HALL, MURNAGHAN, and WILKINS, Circuit Judges.
_________________________________________________________________
Dismissed in part, vacated in part, and remanded by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
Anthony Allen Phillips, Appellant Pro Se. Christine Manuelian,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Anthony Allen Phillips appeals from a district court
order denying his 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997)
motion in which he alleged that he received ineffective assistance of
counsel in various ways. Most notably, Phillips alleged that his coun-
sel did not file a notice of appeal as he instructed. The district court
held an evidentiary hearing on this particular issue, but declined Phil-
lips's request that he be assigned counsel for the purpose of the hear-
ing. We grant a certificate of appealability as to whether Phillips was
deprived of effective assistance of counsel in violation of the Sixth
Amendment when his trial attorney allegedly did not note a requested
appeal. We also vacate that portion of the district court's order deny-
ing relief on this issue and remand for the court to conduct another
evidentiary hearing on this issue alone. We instruct the court to
appoint counsel to represent Phillips at this hearing. We deny a certif-
icate of appealability and dismiss the appeal as to all other aspects of
the district court's order.
Though there is no constitutional right to counsel in § 2255 pro-
ceedings, "there is a statutory right to appointed counsel in a section
2255 proceeding under Rule 8, 28 U.S.C. § 2255, if an evidentiary
hearing is required." United States v. Vasquez, 7 F.3d 81, 83 (5th Cir.
1993). Other circuits that have addressed the issue have also so held.
See United States v. Duarte-Higareda, 68 F.3d 369, 370 (9th Cir.
1995); Rauter v. United States, 871 F.2d 693, 697 (7th Cir. 1989).
Such error is not susceptible to harmless error review. Vasquez, 7
F.3d at 85. We note Phillips has not waived consideration of the issue
on appeal. He requested counsel at the evidentiary hearing, and his
request was denied. He also noted the issue in his informal brief in
this court.
Under 28 U.S.C.A. § 2253(c) (West 1994 & Supp. 1997), an appeal
may not be taken from the denial of a § 2255 motion unless a certifi-
cate of appealability is issued. A certificate of appealability may issue
only if the applicant has made a substantial showing of the denial of
a constitutional right. See 28 U.S.C.A. § 2253(c)(2). Phillips's under-
lying claim, that he was denied effective assistance of counsel due to
2
his counsel's failure to note an appeal as requested is a constitutional
claim. See United States v. Peak, 992 F.2d 39, 41-42 (4th Cir. 1993).
The failure to file a notice of appeal when requested by the defendant
deprives the defendant of his Sixth Amendment right to counsel. Id.
A defendant is not required to show that he was prejudiced by his coun-
sel's failure to file a requested notice of appeal. Id. Failure to file a
requested appeal is per se ineffective assistance of counsel, irrespec-
tive of the possibility of success on the merits. See United States v.
Foster, 68 F.3d 86, 88 (4th Cir. 1995).
Thus, we conclude that Phillips has made a substantial showing of
the denial of a constitutional right. To make a substantial showing of
a denial of a constitutional right, Phillips "must demonstrate that the
issues are debatable among jurists of reason; that a court could
resolve the issues [in a different manner], or that the questions are
adequate to deserve encouragement to proceed further." Lozada v.
Deeds, 498 U.S. 430, 432 (1991) (per curiam) (internal quotation
marks omitted; emphasis and alteration in original). The court below
concluded that Phillips's and his witness' recollections were flawed;
though we express no opinion on the district court's conclusion, it
appears from the record that the issue is "debatable among jurists of
reason" and that a court could resolve the issue in a different manner.
We therefore grant a certificate of appealability as to whether Phil-
lips was deprived of effective assistance of counsel in noting an
appeal from his criminal conviction. We also vacate that part of the
district court's order granting summary judgment on this issue, and
remand for the court to hold another evidentiary hearing on that claim
at which Phillips is represented by appointed counsel. The sole issue
for consideration by the district court on remand is whether Phillips
was denied effective assistance of counsel based upon his allegation
that counsel failed to note an appeal as instructed. We deny a certifi-
cate of appealability and dismiss the appeal from the court's order in
all other respects. 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.
DISMISSED IN PART, VACATED IN PART, AND REMANDED
3