70 F.3d 113
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Roy Steve DAVIS, Defendant-Appellant.
No. 95-6491.
United States Court of Appeals, Fourth Circuit.
Submitted Aug. 31, 1995.Decided Nov. 20, 1995.

Roy Steve Davis, Appellant Pro Se.  Christopher Louis Cardani, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Before WILKINSON, HAMILTON, and WILLIAMS, Circuit Judges.
PER CURIAM:


1
Roy Steve Davis appeals from a district court order denying his motion to withdraw his 28 U.S.C. Sec. 2255 (1988) motion and denying the motion itself.  We affirm the order with modification.


2
The district court properly denied Davis's attempt to withdraw his Sec. 2255 motion with regard to claims that the district court already had dismissed for lack of merit.  However, the district court erred in dismissing the single pending claim (one of ineffective assistance of counsel for failure to perfect an appeal of a criminal conviction after allegedly being directed to do so) with prejudice.  At the point the district court denied Davis's motion to withdraw, the Government only had filed an answer and had moved for denial of the claim by summary judgment.  This is insufficient to establish the prejudice required to support a dismissal with prejudice when a party moves to dismiss a claim voluntarily and without prejudice.  Andes v. Versant Corp., 788 F.2d 1033, 1036 n. 4 (4th Cir.1986).  Thus, we affirm the dismissal of the attorney-error claim but modify it to one without prejudice.


3
We deny Davis's motion for 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.  We also deny Davis's motions for production of a transcript at government expense and for appointment of counsel.

AFFIRMED AS MODIFIED
