UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-6725

VINCENT HARRIS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-93-59-H, CA-97-13-4-H)

Submitted: November 25, 1997

Decided: December 31, 1997

Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Vincent Harris, Appellant Pro Se.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Vincent Ray Harris appeals from the district court's order denying
relief on his 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997) motion.
Harris pled guilty to bank robbery and was sentenced to sixty-six
months imprisonment. In his § 2255 motion, Harris claimed he
received ineffective assistance of counsel when his attorney failed to
note an appeal as instructed by Harris. The district court found his
claim to be without merit and denied relief.* Harris appeals from this
order.

This court has held that "a criminal defense attorney's failure to file
a notice of appeal when requested by his client deprives the defendant
of his Sixth Amendment right to the assistance of counsel, notwith-
standing that the lost appeal may not have had a reasonable probabil-
ity of success." United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993).
Unless it is clear from the pleadings, files, and records that the pris-
oner is not entitled to relief, § 2255 makes an evidentiary hearing
mandatory. 28 U.S.C.A. § 2255; see Raines v. United States, 423 F.2d
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*The government filed a motion for summary judgment. Harris was
granted an enlargement of time in which to respond to the motion, but
failed to respond within the extended time period. As such, pursuant to
Local Rule 4.04, the district court granted the government's motion and
dismissed the action. Nevertheless, "in an abundance of caution," the
court evaluated the merits of Harris's claim and concluded the claim was
meritless.

However, Harris did respond prior to entry of the court's order with
an affidavit in which he reasserted that he had requested counsel to note
an appeal. The affidavit was filed on April 28, 1997, two days before the
court's order was entered on April 30, 1997, and ten days after the
extended time in which the court had set for a response on April 18,
1997. The court's memorandum opinion did not mention Harris's affida-
vit and it appears as though the district court construed it as a notice of
appeal, even though it was filed two days before the court's order was
entered. Even if the court did not consider the affidavit, Harris's com-
plaint was verified, and a verified complaint is the equivalent of an
opposing affidavit for summary judgment purposes. Williams v. Griffin,
952 F.2d 820, 823 (4th Cir. 1991).

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526, 529 (4th Cir. 1970). The district court's determinations as to
whether to hold a hearing under § 2255 and whether petitioner is
required to be present at the hearing are reviewed for abuse of discre-
tion. Raines, 423 F.2d at 529-30. Notwithstanding the court's wide
discretion in the matter, "[t]here will remain, however, a category of
petitions, usually involving credibility, that will require an evidentiary
hearing in open court." Id. "When the issue is one of credibility, reso-
lution on the basis of affidavits can rarely be conclusive . . . ." Id.

There is a factual dispute as to whether Harris requested his attor-
ney, Elizabeth Manton, to file a direct appeal following his convic-
tion. By verified complaint, Harris alleged that Manton failed to file
a notice of appeal as requested. See Williams v. Griffin, 952 F.2d 820,
823 (4th Cir. 1991) (holding that a verified complaint can substitute
for an affidavit opposing summary judgment). Manton did not submit
an affidavit; instead, the court relied on an affidavit submitted by the
acting Federal Public Defender, Edwin Walker, who stated that after
speaking with Manton, it was his understanding that Harris said he
did not wish to pursue an appeal. Based on Walker's affidavit, the
court's own recollection and notes of the "overwhelming" evidence
against Harris, the plea agreement, the Rule 11 colloquy, and coun-
sel's performance at trial, the district court held that Manton did in
fact provide "effective and zealous representation of the petitioner
both before, during and after the judgment."

Because the evidence on the issue was conflicting, the district court
should have conducted a hearing before making a factual determina-
tion. See Becton v. Barnett, 920 F.2d 1190 (4th Cir. 1990) (petition-
er's allegation that his attorney failed to file a notice of appeal as
instructed required remand for evidentiary hearing). Accordingly, we
grant a certificate of appealability and remand with instructions for
the district court to conduct an evidentiary hearing to make appropri-
ate factual findings.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

VACATED AND REMANDED

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