                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 03-6479
LYNELL LYNNIE TAYLOR,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
      for the Eastern District of Virginia, at Newport News.
               Rebecca Beach Smith, District Judge.
                     (CR-00-16, CA-03-13-4)

                      Submitted: August 11, 2003

                      Decided: November 24, 2003

   Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.



Vacated and remanded by unpublished per curiam opinion.


                             COUNSEL

Lynell Lynnie Taylor, Appellant Pro Se. Janet S. Reincke, OFFICE
OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. TAYLOR
                              OPINION

PER CURIAM:

   Lynell Lynnie Taylor appeals the district court’s order dismissing
his motion under 28 U.S.C. § 2255 (2000). Taylor claimed that he
was unable to note a timely appeal from resentencing in his criminal
conviction because his attorney was unavailable due to counsel’s
incarceration. The district court dismissed the motion, reasoning that
Taylor suffered no prejudice from his attorney’s alleged unavailability
because any appeal from the resentencing would have been fruitless.
On appeal, Taylor argues that the district court’s decision violates this
court’s holding in United States v. Peak, 992 F.2d 39 (4th Cir. 1993).
Having previously granted a certificate of appealability on this claim,
we now address its merits.

   In Peak, this court held that counsel’s failure to pursue an appeal
requested by a defendant constitutes ineffective assistance of counsel
regardless of the likelihood of success on the merits. Id. at 42. More-
over, even if a defendant does not specifically instruct counsel to file
an appeal, counsel may still have a duty to consult with his client
about an appeal. Roe v. Flores-Ortega, 528 U.S. 470, 478-80 (2000).

   We conclude that the district court erred in dismissing Taylor’s
motion as to this claim by examining the potential merits of a possible
appeal. Accordingly, we vacate its order dismissing Taylor’s § 2255
motion as to this claim and remand for consideration in light of Peak
and Roe. We express no opinion as to the merits of Taylor’s underly-
ing ineffective assistance of counsel claim. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

                                        VACATED AND REMANDED
