United States v. Robertson , 196 F. App'x 216 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7315
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARRYLE EDWARD ROBERTSON, a/k/a Tiger,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR-
01-304-JFM; CA-04-1213-JFM)
Submitted: August 9, 2006 Decided: August 30, 2006
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated in part and remanded by unpublished per curiam opinion.
Darryle Edward Robertson, Appellant Pro Se. Stephen Matthew
Schenning, John Francis Purcell, Jr., OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Darryle Edward Robertson seeks to appeal the district
court’s order denying relief on his motion filed under 28 U.S.C.
§ 2255 (2000). Dismissing all other claims, this court granted a
certificate of appealability on a single claim of ineffective
assistance of counsel in which Robertson 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.
Robertson pled guilty to conspiracy to distribute a
variety of drugs in violation of 21 U.S.C. § 846 (2000). The
district court adopted the plea agreement’s recommendation and
sentenced him to 360 months’ imprisonment. Robertson did not
appeal. In his § 2255 motion, signed under penalty of perjury,
Robertson claims that he told his attorney that he wished to appeal
but that counsel failed to comply with his request. Counsel stated
under oath that he has no recollection of Robertson’s request.
In order to establish a Sixth Amendment violation based
on counsel’s failure to appeal, Robertson 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
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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 Robertson’s claim, under penalty of
perjury, that counsel denied his request to file an appeal, coupled
with counsel’s lack of memory, there is a genuine issue of material
fact concerning whether Robertson was denied effective assistance
of counsel.
Accordingly, we vacate the portion of the district
court’s order denying relief on this claim and remand for the
limited purpose of permitting the district court to conduct further
proceedings to resolve this issue. The record, as supplemented,
will then be returned to this court. We deny Robertson’s motion to
appoint counsel. 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 AND REMANDED
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