                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-6729


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LUTHER LEE ROBINSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham.    James A. Beaty, Jr.,
Chief District Judge.  (1:06-cr-00119-JAB-1; 1:07-cv-00691-JAB-
WWD)


Submitted:   April 29, 2011                 Decided:   May 25, 2011


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Dismissed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Luther Lee Robinson, Appellant Pro Se.        Graham Tod Green,
Assistant United States Attorney, Winston-Salem, North Carolina;
Angela   Hewlett  Miller,   Assistant  United  States  Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Luther     Lee    Robinson         seeks      to    appeal      the     district

court’s order denying relief on his 28 U.S.C.A. § 2255 (West

Supp. 2010) motion.          We dismiss the appeal in part, vacate the

district    court’s        order    in    part,          and    remand        for   further

proceedings.

            We previously granted a certificate of appealability

on the issue of whether an evidentiary hearing was necessary in

the district court to resolve Robinson’s claim that counsel’s

failure to note an appeal from the criminal judgment amounted to

ineffective assistance, deferring consideration of the remainder

of Robinson’s appeal.          Conceding that an evidentiary hearing was

necessary, the Government has moved to remand the case to the

district court.       Without expressing an opinion on the merits of

the   underlying     claim,    we     vacate      the     portion      of     the   district

court’s    order     denying        Robinson’s          claim        that     counsel    was

ineffective for failing to file a notice of appeal from the

criminal judgment, grant the Government’s motion, and remand for

an evidentiary hearing to resolve this issue.

            Robinson       asserted      one     other     claim       in   his     informal

brief;    namely,    that     counsel     was      ineffective          for    failing   to

research, prior to sentencing, appeals pending in the Fourth

Circuit    that    might     impact    his       case.         The   previously-granted

certificate of appealability did not include this issue.                                  We

                                             2
decline to review the claim because Robinson did not raise it in

the district court.          See Muth v. United States, 1 F.3d 246, 250

(4th Cir. 1993) (stating that issues raised for first time on

appeal will not be considered absent a showing of plain error or

a fundamental miscarriage of justice).

              Accordingly,     we     vacate      the    portion     of   the   district

court’s     order      denying       Robinson’s         claim      that   counsel     was

ineffective      for     failing       to        note    an     appeal,     grant     the

Government’s motion to remand, and remand to the district court

for an evidentiary hearing to resolve this claim.                           As to the

remaining     claim,    we    deny    a   certificate         of    appealability     and

dismiss in part the appeal.               We grant Robinson leave to proceed

in forma pauperis and 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.

                                                                   DISMISSED IN PART,
                                                                     VACATED IN PART,
                                                                         AND REMANDED




                                             3
