                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-6887


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

COLLINS KUSI SAKYI,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.       Leonie M. Brinkema,
District Judge. (1:06-cr-00405-LMB-1; 1:08-cv-00321-LMB)


Submitted:   March 25, 2011                     Decided:   April 7, 2011


Before MOTZ and    KING,    Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.


Affirmed in part as modified, vacated in part, and remanded with
instructions by unpublished per curiam opinion.


Collins Kusi Sakyi, Appellant Pro Se. Lawrence Joseph Leiser,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                  Collins   Kusi   Sakyi   seeks     to   appeal   the   district

court’s order adjudicating his 28 U.S.C.A. § 2255 (West Supp.

2010) motion.            The district court granted relief by providing

Sakyi fourteen days in which to appeal his criminal judgment,

but dismissed the remainder of the § 2255 claims on the ground

that they were without merit.

                  An attorney who fails to file a direct appeal when

requested to do so by his criminal defendant client “deprives

the defendant of his Sixth Amendment right to the assistance of

counsel, notwithstanding that the lost appeal may not have had a

reasonable probability of success.”                United States v. Peak, 992

F.2d 39, 42 (4th Cir. 1993).                Counsel is not absolved of his

duty to file a requested notice of appeal by a waiver of appeal

rights in a plea agreement.                United States v. Poindexter, 492

F.3d       263,    271   (4th Cir. 2007). *     In    this   Circuit,    where   a

prisoner successfully moves, pursuant to § 2255, to reinstate

his right to a direct appeal, the proper remedy is to vacate the

underlying judgment of conviction and reenter the judgment to

permit the Fed. R. App. 4(b) appeal period to run anew.                      See

Peak, 992 F.2d at 42.

       *
       In this case, the district court declined to find counsel
ineffective, but found that granting Sayki relief on this claim
“is in the efficient administration of justice.”


                                           2
               Despite       the    district        court’s     grant        of     the    relief

described above, Sakyi’s judgment of conviction was not vacated

and reentered.            Furthermore, while the district court denied

relief    on    the     merits      as    to   the     remainder       of    Sakyi’s       § 2255

claims, we note that those claims could otherwise be raised in

Sakyi’s reinstated direct appeal.                      When a prisoner such as Sakyi

has wrongly been denied the right to a direct appeal, he should

not be forced to raise all possible claims against his judgment

of conviction in his first § 2255 motion and thereby, “make the

substantive objections to his conviction and sentence that his

lawyer    would       have    made       for   him     on    direct       appeal.”         In   re

Goddard, 170 F.3d 435, 437 (4th Cir. 1999).

               To place Sakyi in the proper posture to proceed with

his    criminal         appeal,          we    grant        Sakyi     a      certificate        of

appealability and vacate that portion of the district court’s

order and judgment granting leave to file an out-of-time appeal.

We    remand     with     instructions          to     vacate       and     reenter       Sakyi’s

judgment of conviction.                  We further modify the district court’s

denial    of     relief      on     Sakyi’s     remaining           § 2255    claims       to   be

without prejudice and affirm the denial of relief as modified.

We    dispense    with       oral    arguments       because        the     facts    and    legal




                                                3
contentions are adequately presented in the materials before the

court and arguments would not aid the decisional process.



                                    AFFIRMED IN PART AS MODIFIED,
                                             VACATED IN PART, AND
                                       REMANDED WITH INSTRUCTIONS




                                4
