                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 99-6988
RODERICK TYRONDA WITHERSPOON,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
   for the Middle District of North Carolina, at Winston-Salem.
            N. Carlton Tilley, Jr., Chief District Judge.
                 (CR-90-277-WS, CA-97-526-6)

                      Argued: September 28, 2000

                      Decided: November 6, 2000

  Before WILKINS, WILLIAMS, and TRAXLER, Circuit Judges.



Vacated and remanded by published opinion. Judge Wilkins wrote the
opinion, in which Judge Williams and Judge Traxler joined.


                             COUNSEL

ARGUED: Michael K. Ryan, Student Counsel, Appellate Litigation
Program, GEORGETOWN UNIVERSITY LAW CENTER, Wash-
ington, D.C., for Appellant. Angela Hewlett Miller, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee. ON
BRIEF: Steven H. Goldblatt, Director, Adam N. Steinman, Supervis-
ing Attorney, Jeffrey E. Tsai, Student Counsel, Appellate Litigation
Program, GEORGETOWN UNIVERSITY LAW CENTER, Wash-
2                   UNITED STATES v. WITHERSPOON

ington, D.C., for Appellant. Walter C. Holton, Jr., United States
Attorney, Greensboro, North Carolina, for Appellee.


                              OPINION

WILKINS, Circuit Judge:

   Roderick Tyronda Witherspoon appeals an order of the district
court dismissing his motion to vacate his sentence, see 28 U.S.C.A.
§ 2255 (West Supp. 2000), in which he claimed that his attorney was
ineffective for failing to file an appeal. We vacate the order and
remand for further proceedings consistent with this opinion.

                                   I.

   Witherspoon is a federal prisoner who pled guilty to conspiracy to
distribute cocaine and heroin. See 21 U.S.C.A. § 846 (West 1999).
Witherspoon’s presentence report (PSR) recommended that he be
held accountable for the total amount of drugs distributed during the
conspiracy and that his offense level be adjusted upward for his role
in the offense. Witherspoon objected to the drug quantity calculation
and the proposed adjustment for his role in the offense. He argued
that his adjusted offense level should be no higher than 26, which,
combined with his criminal history category of III, would have
resulted in a guideline range of 78 to 97 months imprisonment. The
district court overruled Witherspoon’s objections and determined his
adjusted offense level to be 33, with a resulting guideline range of
168 to 210 months imprisonment. The court sentenced Witherspoon
to 168 months imprisonment and ordered that his federal sentence be
served concurrently with a pending state sentence of 18 years impris-
onment. Witherspoon did not appeal.

   Approximately six years later, Witherspoon moved to vacate his
sentence pursuant to 28 U.S.C.A. § 2255, alleging, as is pertinent
here, that counsel was constitutionally ineffective for failing to appeal
his sentence. Witherspoon submitted an affidavit stating that prior to
sentencing he had discussed the PSR with counsel as well as objec-
tions that counsel had made to the PSR. Witherspoon’s affidavit
                    UNITED STATES v. WITHERSPOON                      3

stated that he informed counsel that "if the court did not go along with
any of the objections" to the PSR, Witherspoon "would like [his] case
reviewed by a higher court." J.A. 66.

   The Government argued that Witherspoon’s motion should be
denied and dismissed.1 In response to Witherspoon’s affidavit, the
Government submitted an affidavit from Witherspoon’s counsel,
which stated that "[a]t no time did petitioner direct the undersigned
to file an appeal on his behalf" and that "[p]etitioner was advised of
his right to file an appeal of his sentence and had he instructed the
undersigned to file an appeal, one would have been filed on his
behalf." J.A. 105-06. As is relevant here, the Government contended
that counsel’s counteraffidavit and Witherspoon’s long delay in filing
his motion eliminated any factual dispute that would require an evi-
dentiary hearing.

   In Witherspoon’s subsequent reply, he maintained that an evidenti-
ary hearing was necessary to determine whether he had indeed
requested an appeal. Regarding his lengthy delay in pursuing the
§ 2255 motion, Witherspoon filed an affidavit alleging that during his
incarceration in state prison he did not have access to any federal
legal materials to research his case and that he filed his motion only
three months after being transferred to a federal facility.

   A magistrate judge recommended that Witherspoon’s § 2255
motion be denied. The magistrate judge rejected Witherspoon’s claim
of ineffective assistance of counsel primarily on the ground that even
if Witherspoon’s affidavit were true, his instruction to appeal if the
objections to the PSR were not sustained was inadequate because any
request to appeal should have been made after sentencing. The magis-
trate judge also concluded that because Witherspoon failed to rebut
his attorney’s counteraffidavit with another affidavit of his own, he
had failed to demonstrate the existence of a factual dispute regarding
whether he requested an appeal, and therefore no evidentiary hearing
was necessary. Witherspoon objected to the magistrate judge’s rec-
  1
   The Government initially moved for dismissal, contending that
Witherspoon’s motion was untimely. That motion was denied, however,
and the Government was ordered to address the motion on its merits. The
Government has not appealed that order.
4                      UNITED STATES v. WITHERSPOON

ommendation, arguing, inter alia, that his request for appeal was not
deficient by virtue of the fact that it was made before sentencing and
again asserting that he was at least entitled to an evidentiary hearing.
The district court overruled Witherspoon’s objections and dismissed
the § 2255 motion based on the magistrate judge’s recommendation.

                                     II.

  Witherspoon argues that the district court erred in dismissing his
motion without holding an evidentiary hearing. Section 2255 of Title
28 provides in part that

        [u]nless the motion and the files and records of the case con-
        clusively show that the prisoner is entitled to no relief, the
        court shall cause notice thereof to be served upon the United
        States attorney, grant a prompt hearing thereon, determine
        the issues and make findings of fact and conclusions of law
        with respect thereto.

28 U.S.C.A. § 2255 (emphasis added).2 We decide de novo an issue
of whether specific facts constitute ineffective assistance of counsel.
See Becton v. Barnett, 920 F.2d 1190, 1192 (4th Cir. 1990). We con-
clude that the motion, files, and records here failed to conclusively
show that Witherspoon was entitled to no relief and that the district
court erred in dismissing his § 2255 motion.

   In order to establish a Sixth Amendment violation based on coun-
sel’s failure to appeal, Witherspoon must prove that (1) counsel was
ineffective and (2) but for counsel’s ineffectiveness, an appeal would
have been filed. See Roe v. Flores-Ortega, 120 S. Ct. 1029, 1034-38
(2000). An attorney who fails to file an appeal after being instructed
by his client to do so is per se ineffective. See id. at 1035. When a
client does not specifically instruct counsel to appeal, however,
whether counsel has been ineffective by failing to appeal depends
    2
   We note that 28 U.S.C.A. § 2255 provides that the court may hold a
hearing on a § 2255 motion without the presence of the prisoner.
Whether a prisoner’s presence is required is left to the sound discretion
of the district court. See Raines v. United States, 423 F.2d 526, 530 (4th
Cir. 1970).
                    UNITED STATES v. WITHERSPOON                         5

upon "whether counsel in fact consulted with the defendant about an
appeal." Id. In this context, "consult" "convey[s] a specific meaning—
advising the defendant about the advantages and disadvantages of tak-
ing an appeal, and making a reasonable effort to discover the defen-
dant’s wishes." Id. If counsel has not consulted with his client, the
court must then ask whether the failure to consult itself constitutes
deficient performance. See id.; see also id. at 1036 (noting that coun-
sel is not always constitutionally ineffective for failing to consult
regarding an appeal). The Sixth Amendment requires counsel to con-
sult with the defendant concerning whether to appeal when counsel
has reason to believe "either (1) that a rational defendant would want
to appeal (for example, because there are nonfrivolous grounds for
appeal), or (2) that this particular defendant reasonably demonstrated
to counsel that he was interested in appealing." Id. at 1036. Although
the Roe Court declined to adopt a per se rule that defense counsel who
fails to consult with the defendant concerning an appeal is ineffective,
the Court did state, "We expect that courts evaluating the reasonable-
ness of counsel’s performance using the inquiry we have described
will find, in the vast majority of cases, that counsel had a duty to con-
sult with the defendant about an appeal."3 Id. at 1037.

   We need not decide whether, taking the facts in Witherspoon’s
affidavit as true, Witherspoon’s expression of a conditional desire to
appeal rose to the level of an "instruction" to counsel because even
assuming that it did not, the record still does not conclusively show
that Witherspoon is entitled to no relief. According to Witherspoon’s
affidavit, Witherspoon and his counsel discussed specific objections
to the presentence report and Witherspoon informed counsel that if
the district court overruled his objections he wanted to appeal. In his
  3
    The Court gave an example of when failing to file an appeal without
consulting might not be constitutionally deficient:
    a defendant consults with counsel; counsel advises the defendant
    that a guilty plea probably will lead to a 2 year sentence; the
    defendant expresses satisfaction and pleads guilty; the court sen-
    tences the defendant to 2 years’ imprisonment as expected and
    informs the defendant of his appeal rights; the defendant does
    not express any interest in appealing, and counsel concludes that
    there are no nonfrivolous grounds for appeal.
Id. at 1036.
6                     UNITED STATES v. WITHERSPOON

affidavit, counsel did not directly deny being told of Witherspoon’s
desire to appeal his sentence if his objections were overruled, but
stated only that Witherspoon never "direct[ed]" or "instructed" him to
appeal. J.A. 105-06. Nor did counsel allege that he had any discussion
with Witherspoon concerning whether to appeal after the sentence
was imposed.4 If it is indeed true that Witherspoon expressed his
intention to appeal if his objections were overruled and counsel
decided not to file an appeal without having discussed the matter fur-
ther with Witherspoon after he was sentenced, counsel’s performance
clearly was constitutionally deficient. See Roe, 120 S. Ct. at 1035-37.

   Nor does the record conclusively demonstrate that Witherspoon
would not have appealed had counsel consulted with him after he was
sentenced. Indeed, the overruling by the district court of Wither-
spoon’s objections to the PSR resulted in the application of a guide-
line range much higher than the one that would have applied had his
objections been sustained. Accordingly, assuming that Witherspoon
truly did express his intent to appeal if his objections were overruled,
a fact finder could well determine that he would not have changed his
mind after sentencing.5

   For the reasons already mentioned, it is not clear from counsel’s
affidavit whether counsel disputes the facts alleged by Witherspoon.
Because we conclude that those facts if true would entitle him to
relief, we hold that the record does not conclusively demonstrate that
    4
     Counsel’s affidavit states that "[p]etitioner was advised of his right to
file an appeal of his sentence and had he instructed the undersigned to
file an appeal, one would have been filed." J.A. 105-06. However, the
affidavit does not state whether it was counsel or the district court who
advised Witherspoon of his right to appeal. And, even had the affidavit
stated that it was counsel that gave the advice, it does not state whether
the advice was given before or after sentencing.
   5
     The Government points out that Witherspoon benefitted from the
decision of the district court to order his federal sentence to be served
concurrently with his state sentence and argues that Witherspoon could
have decided not to appeal as a result. The receipt of that benefit, how-
ever, does not conclusively demonstrate that Witherspoon would not
have reiterated his request to appeal had counsel discussed the matter
with him after sentencing.
                    UNITED STATES v. WITHERSPOON                     7

Witherspoon was entitled to no relief. We therefore hold that the dis-
trict court erred in dismissing Witherspoon’s motion without holding
an evidentiary hearing.6 Accordingly, we vacate the order dismissing
Witherspoon’s § 2255 motion and remand for further proceedings
consistent with this opinion. See Becton, 920 F.2d at 1195-96.

                                       VACATED AND REMANDED
  6
  We note that Roe was decided after the magistrate judge made his rec-
ommendation and the district court dismissed Witherspoon’s motion.
