United States v. Cruel , 21 F. App'x 142 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-7039
YUESEYUAN CRUEL,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-99-625, CA-01-708-6-20)
Submitted: October 10, 2001
Decided: October 22, 2001
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Yueseyuan Cruel, Appellant Pro Se. David Calhoun Stephens, Assis-
tant United States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. CRUEL
OPINION
PER CURIAM:
Yueseyuan Cruel appeals from the district court’s order denying
his motion filed under 28 U.S.C.A. § 2255 (West Supp. 2001). For the
reasons that follow, we grant a certificate of appealability and vacate
and remand for further proceedings.
In the district court below, Cruel made several allegations of error
including that his counsel was ineffective for failing to file a notice
of appeal from his conviction for uttering counterfeit securities. The
district court denied all of Cruel’s claims. The court found Cruel’s
claim that his attorney provided ineffective assistance by not filing a
notice of appeal failed because Cruel had not shown that he specifi-
cally asked his attorney to appeal. The court relied on United States
v. Peak, 992 F.2d 39, 42 (4th Cir. 1993), as authority for this finding.
When a client does not specifically instruct counsel to appeal,
whether counsel has been ineffective by failing to appeal depends
upon whether counsel consulted with the defendant. Roe v. Flores-
Ortega, 528 U.S. 470, 476-77 (2000); see also Hudson v. Hunt, 235
F.3d 892, 896-97 (4th Cir. 2000) (applying Roe and finding defen-
dant’s attorneys were constitutionally deficient for failing to consult
with defendant regarding an appeal). Thus, we vacate and remand this
appeal for the district court to conduct an analysis under Roe. We
deny Cruel’s motions for judgment, summary judgment, to expedite,
for bail pending appeal, to suppress evidence, and for a writ of man-
damus. We decline to address the other issues raised in this appeal.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED