                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 06-3104
                                     ___________

Fred Watson, Jr.,                      *
                                       *
            Petitioner/Appellant,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Missouri.
United States of America,              *
                                       *
            Respondent/Appellee.       *
                                  ___________

                               Submitted: June 14, 2007
                                  Filed: July 18, 2007
                                   ___________

Before MURPHY, BEAM, and SHEPHERD, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       Watson pled guilty to one count of conspiracy to distribute cocaine in violation
of 21 U.S.C. §§ 846 and 841(a)(1) and was sentenced to 87 months. Watson later
filed a motion to vacate, set aside, or modify his sentence under 28 U.S.C. § 2255,
arguing among other things that he was denied effective assistance of counsel when
his counsel failed to file a notice of appeal as instructed. The district court denied his
petition without a hearing, and Watson appeals. We remand for further proceedings.

      Watson and several codefendants were each indicted on one count of
conspiracy to distribute more than 5 kilograms of cocaine and one count of forfeiture.
Pursuant to a plea agreement Watson appeared with attorney Stephen Welby on
August 29, 2003 to plead guilty to the forfeiture count and to the lesser included
charge of conspiracy to distribute more than 500 grams of cocaine. In exchange, the
government agreed not to bring additional charges in the Eastern District of Missouri
in connection with his distribution of cocaine and not to seek enhanced penalties
based on a prior drug conviction. See 21 U.S.C. § 851.

       Watson stipulated in the agreement that he had been fronted cocaine on multiple
occasions by Dimitri Bibbs, who later became an informant for the government. He
also agreed to forfeit a number of items seized during a search of his residence,
including a .25 caliber pistol with a defaced serial number, and he stipulated that all
forfeited items were "used or intended to be used . . . to commit or facilitate" the
offense. As part of the plea agreement, both Watson and the government waived the
right to appeal the conviction and sentence with respect to all non jurisdictional issues
except the district court's use of certain departures at sentencing. Watson also agreed
to waive the right to bring most post conviction challenges, but retained the right to
challenge the proceedings under 28 U.S.C. § 2255 based on ineffective assistance of
counsel.

       At the sentencing hearing on January 27, 2004, the district court calculated a
base offense of level of 30 based on a drug quantity of 3.5 to 5 kilograms of cocaine,
U.S.S.G. § 2D1.1(c), as recommended in both the plea agreement and presentence
report. The court then applied a two level enhancement for possession of a gun in
connection with the offense, see id. 2D1.1(b)(1), and a three level reduction for
acceptance of responsibility, see id. §§ 3E1.1(a), (b), resulting in a total offense level
of 29. With a criminal history category I, Watson had an advisory guidelines range
of 87 to 108 months. The district court sentenced him to 87 months. No direct appeal
was filed.

       Some six months later, Watson filed a pro se motion under 28 U.S.C. § 2255.
In his motion he claimed that he had been denied his constitutional right to effective
                                        -2-
assistance of counsel. He first alleged that his trial attorneys – Welby and N. Scott
Rosenblum – failed to file a notice of appeal despite his "request and insistence" that
they do so. He sought resentencing so that his time to appeal could start anew. He
also alleged ineffective assistance as a result of his counsel's failure to object at
sentencing to the relevant drug quantities and the gun enhancement, as well as their
failure to challenge the validity of his indictment and the factual basis of his guilty
plea.

       The district court denied the motion on June 19, 2006 without a hearing,
concluding that none of the grounds urged by Watson amounted to ineffective
assistance of counsel. Relevant to this appeal, the district court rejected Watson's
claim that his attorneys unreasonably failed to file a notice of appeal. The court
acknowledged the Supreme Court's decision in Roe v. Flores-Ortega, 528 U.S. 470,
477, 486 (2000), which held that an attorney's failure to file a notice of appeal after
being requested to do so by the client amounts to per se ineffective assistance
regardless of the appeal's apparent likelihood of success. The district court determined
that Watson had not offered sufficient evidence that he had asked his attorneys to
appeal. It characterized his allegation that he had made such a request as a "bare
assertion" which was insufficient to entitle him to relief or to a further inquiry. The
district court also refused to grant a certificate of appealability, a prerequisite to
appellate review of its order. See 28 U.S.C. § 2253(c)(1).

       Watson filed an application for a certificate of appealability with this court on
the issue of whether his right to effective assistance of counsel was violated by the
failure of his trial attorneys to file a notice of appeal as he requested. After
considering the application, we granted a certificate on that issue. Watson now
appeals the denial of his § 2255 motion, arguing that his factual allegations, if taken
as true, would entitle him to relief without first having to prove that an appeal would
be meritorious or likely to succeed. He contends that he was entitled to a hearing to
determine the credibility of those allegations. He complains in addition that his

                                          -3-
counsel did not object to the factual basis of his plea agreement and did not object at
sentencing to the relevant drug quantities and gun enhancement.

        In its brief the government responded that the district court did not need to hold
a hearing on Watson's claim, not because his allegation was incredible on its face but
because even if he had requested an appeal as alleged, he would not be entitled to
relief. The government contended that an appeal filed by his attorneys in response to
his request would have been frivolous since Watson had already waived nearly all
appeal rights in the plea agreement. It expressed the view that the failure to file an
appeal was therefore unlikely to have prejudiced Watson.

        At oral argument, Watson's counsel approached the podium and announced that
the government wished to make a statement. Government counsel then reported that
it had recently become aware that its position ran counter to that of at least two
circuits, which held that the failure of counsel to file a requested appeal amounted to
ineffective assistance even if a petitioner had waived his appeal rights in a plea
agreement. See Campusano v. United States, 442 F.3d 770, 775 (2d Cir. 2006);
United States v. Garrett, 402 F.3d 1262, 1267 (10th Cir. 2005). Because it did not
wish to urge a circuit split, the government conceded that the case should be remanded
to the district court for an evidentiary hearing to determine whether Watson discussed
the filing of an appeal with his attorneys.

       Under 28 U.S.C. § 2255 a defendant in federal custody may seek post
conviction relief on the ground that his sentence was imposed in the absence of
jurisdiction or in violation of the Constitution or laws of the United States, was in
excess of the maximum authorized by law, or is otherwise subject to collateral attack.
28 U.S.C. § 2255. A petitioner is entitled to an evidentiary hearing on his § 2255
claim unless "the motion and the files and records of the case conclusively show that
the prisoner is entitled to no relief." 28 U.S.C. § 2255. No hearing is required where
the claim "is inadequate on its face or if the record affirmatively refutes the factual
assertions upon which it is based." Shaw v. United States, 24 F.3d 1040, 1043 (8th
                                            -4-
Cir. 1994). We review de novo a district court's denial of a § 2255 motion without an
evidentiary hearing. Buster v. United States, 447 F.3d 1130, 1132 (8th Cir. 2006).

       Watson claims that his counsel was ineffective in failing to honor his request
to file a direct appeal. To prevail on an ineffective assistance of counsel claim, a
petitioner generally must show that his counsel's performance "fell below an objective
standard of reasonableness" and that he was prejudiced by this deficiency. Strickland
v. Washington, 466 U.S. 668, 687-88 (1984). Where an attorney disregards specific
instructions from a defendant to file a notice of appeal, he "acts in a manner that is
professionally unreasonable."1 Flores-Ortega, 528 U.S. at 477. In such a case,
prejudice is presumed because the defendant has forfeited his right to an appellate
proceeding as a result of his counsel's error. Id. at 483-84. The court need not inquire
into whether the intended appeal would be meritorious or likely to succeed. See
Barger v. United States, 204 F.3d 1180, 1182 (8th Cir. 2000).

      The issue on appeal is whether the presumption of prejudice announced in
Flores-Ortega applies where the petitioner has waived appellate rights as a part of a
plea agreement. At the time this case was argued, the Second, Tenth, and Eleventh
Circuits had all held that it does. See Campusano, 442 F.3d 770; Garrett, 402 F.3d
1262; Gomez-Diaz v. United States, 433 F.3d 789 (11th Cir. 2005). The Fourth and
Fifth Circuits recently joined them in that conclusion. See United States v.
Poindexter, 05-7635/7636, 2007 U.S. App. LEXIS 15360 (4th Cir. June 28, 2007);
United States v. Tapp, 05-30222, 2007 U.S. App. LEXIS 15343 (5th Cir. June 28,
2007). This view is most consistent with the Supreme Court's holding in Flores-




      1
       Where a defendant has not specifically requested an appeal, the reasonableness
of counsel's conduct is judged by whether counsel had a duty to consult the client
about the possibility of an appeal. Flores-Ortega, 528 U.S. at 480. This duty is
triggered where there is reason to believe that a rational defendant would want to
appeal or where the client has reasonably demonstrated an interest in appealing. Id.
                                        -5-
Ortega that a defendant is prejudiced by the forfeiture of an appeal regardless of its
apparent merit.

       Although the waiver in Watson's plea agreement limits the circumstances under
which he may take a direct appeal of his conviction or sentence, it does not foreclose
appeal altogether. The "limited perspective of collateral review" is not the appropriate
vantage point from which to assess whether Watson might have any meritorious issues
that can be raised on appeal in spite of his waiver. See Garrett, 402 F.3d at 1267; cf.
United States v. Aronja-Inda, 422 F.3d 734, 737 (8th Cir. 2005) (government bears
burden of establishing that appeal is barred by waiver, including that application of
waiver would not "result in a miscarriage of justice"). We conclude that if Watson
asked his attorneys to file a notice of appeal and they did not, he was denied effective
assistance of counsel and is entitled to resentencing so that he can file a timely appeal.
See Barger, 204 F.3d at 1182.

       The only remaining issue is whether the district court erred by not holding an
evidentiary hearing. Where petitioner's allegations, if true, amount to ineffective
assistance of counsel, a hearing must be held unless the record "affirmatively refutes
the factual assertions upon which [the claim] is based." Shaw, 24 F.3d at 1043. There
is no evidence in the record to contradict Watson's assertion that he requested an
appeal. Although the district court was not required to credit Watson's assertion, see
Barger, 204 F.3d at 1182, it was required to hold a hearing before making factual
determinations about Watson's credibility. See Koskela v. United States, 235 F.3d
1148, 1149 (8th Cir. 2001); see also Machibroda v. United States, 368 U.S. 487, 494-
95 (1962) (noting that hearing is appropriate where petitioner's allegations relate to
"purported occurrences outside the courtroom and upon which the record could,




                                           -6-
therefore, cast no real light"). We agree with both parties that remand is appropriate
so that a hearing can be held as to whether Watson requested an appeal.2

       For the foregoing reasons, we vacate the order of the district court and remand
the case for further proceedings consistent with this opinion.

BEAM, Circuit Judge, concurring.

      I concur in the result reached by the court.
                        ______________________________




      2
        We decline to reach Watson's other arguments as they are outside the scope of
the certificate of appealability. See Richardson v. Bowersox, 188 F.3d 973, 982 (8th
Cir. 1999).
                                          -7-
