UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                     No. 95-6723
EVA MARIE ST. GERMAIN, a/k/a Eve
Speir,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-92-203-21P, CA-94-70-3-P)

Submitted: October 31, 1995

Decided: February 5, 1996

Before WILKINS and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per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

_________________________________________________________________

COUNSEL

Eva Marie St. Germain, Appellant Pro Se. Harry Thomas Church,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Eva Marie St. Germain appeals from a district court order that
denied her 28 U.S.C. § 2255 (1988) motion and granted summary
judgment to the Government.1 Because we find that, when the record
is construed in the light most favorable to St. Germain, there remains
a genuine issue of material fact as to whether she requested that her
attorney note an appeal from her sentence, we vacate the district
court's summary judgment on St. Germain's ineffective assistance
claim in regard to his alleged failure to note an appeal from her con-
viction; we remand that claim to the district court for further proceed-
ings. We affirm the district court's order in all other respects.

St. Germain entered a guilty plea to conspiracy to possess with
intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846
(1988) and received a seventy-two month sentence which she did not
appeal. In her § 2255 motion, she alleged that she did not understand
the consequences of her guilty plea; that she received ineffective
assistance of counsel at her guilty plea hearing; and that she was
denied her "right of appeal."

This Court reviews summary judgments de novo. Higgins v. E. I.
DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).
Summary judgment is properly granted where there are no genuine
issues of material fact and where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The
movant bears the burden of establishing entitlement to summary judg-
_________________________________________________________________
1 Though the court did not enter judgment in a separate document as
required by Fed. R. Civ. P. 58, we find that the parties waived the sepa-
rate judgment rule. See Bankers Trust Co. v. Mallis, 435 U.S. 381, 385
(1978).

                    2
ment, and the nonmovant must then respond to the motion with affi-
davits or other verified evidence, rather than relying on allegations in
the complaint. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
A verified complaint may serve as a response to a summary judgment
motion when it is based on personal knowledge. Williams v. Griffin,
952 F.2d 820, 823 (4th Cir. 1991).

"[T]he court is obliged to credit the factual asseverations contained
in the material before it which favor the party resisting summary
judgment and to draw inferences favorable to that party if the infer-
ences are reasonable (however improbable they may seem)." Cole v.
Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). Affidavits or depositions
filed in support of a summary judgment motion are used to determine
whether issues of fact exist and not to decide issues themselves; sum-
mary judgment may be granted only when the nonmovant's evidence
fails to put a material fact in dispute or is not significantly probative.
Gray v. Spillman, 925 F.2d 90, 95 (4th Cir. 1991). Thus, when resolu-
tion of an issue of fact depends upon a credibility determination, sum-
mary judgment is not appropriate. Id.; Davis v. Zahradnick, 600 F.2d
458, 460 (4th Cir. 1979).

St. Germain alleges in her § 2255 motion that she "was not aware
that [her] plea would get [her] 72 months." She continues that her
attorney advised her that she would be "better off" pleading guilty
rather than having a jury trial, that she would receive a "5K.1 reduc-
tion," and that her attorney "continuously confused" her by telling her
that if she went to trial, she would be convicted and would receive the
maximum sentence.2 The district court found that this claim had no
basis in fact based upon the transcript of St. Germain's Rule 11 hear-
ing. The court informed St. Germain at her guilty plea hearing that her
sentence "would be at least ten years imprisonment, a maximum sen-
tence to be life. The fine would be four million dollars plus twice the
pecuniary gain or loss." St. Germain responded under oath that she
understood the minimum and maximum penalties which could be
imposed. Although there was some discussion of the possibility of a
_________________________________________________________________
2 The Government moved for a downward departure pursuant to USSG
§ 5K1.1 "to reflect defendant's substantial assistance." The court granted
the motion and departed downward in sentencing St. Germain to
seventy-two months' incarceration.

                     3
government motion for a reduction of sentence under USSG § 5K1.1,
St. Germain stated that no one advised her any differently concerning
the possible punishment she faced for her crime. She also verified that
she pleaded guilty because she in fact committed the crime charged
and that she entered her plea freely and voluntarily. The court then
concluded that St. Germain entered her guilty plea freely and volun-
tarily. There was no direct appeal from the guilty plea.

In order to proceed on a § 2255 motion based on trial errors to
which no contemporaneous objection was made, St. Germain must
show "cause" excusing her procedural default and "actual prejudice"
resulting from the errors of which she complains. United States v.
Frady, 456 U.S. 152, 167-68 (1982). The Frady cause and prejudice
standard applies to collateral challenges to unappealed guilty pleas.
United States v. Maybeck, 23 F.3d 888, 891 (4th Cir. 1994).3 This
Court reviews the district court's conclusions of law de novo. Id.
While the record discloses that St. Germain may have established
cause for her default, she has not established prejudice.

The district court concluded that St. Germain did not establish
cause for her failure to appeal her conviction. The court stated in a
footnote in its opinion:

          The Court's application of Frady depends on it finding
          that the Petitioner never asked her attorney to file an appeal
          (infra). Had the Petitioner's attorney failed to file an appeal
          despite her request, then she would have an ineffective
          assistance of [counsel] claim which would satisfy the cause
          and prejudice prongs.

The existence of cause for a procedural default usually turns on show-
ing denial of effective assistance of counsel, a factor external to the
defense which impeded compliance with a procedural rule, or novelty
of the claim. Murray v. Carrier, 477 U.S. 478, 488 (1986).
_________________________________________________________________
3 Though the "actual innocence" exception to the "cause and prejudice"
requirement for consideration of an issue following procedural default
applies in noncapital sentencing enhancement cases, Maybeck, 23 F.3d
at 892-94, St. Germain does not allege actual innocence.

                    4
Counsel's failure to pursue an appeal requested by a defendant may
constitute ineffective assistance of counsel regardless of the likeli-
hood of success on the merits. United States v. Peak, 992 F.2d 39, 42
(4th Cir. 1993). If counsel promises to note an appeal and then fails
to do so, petitioner may be entitled to relief. Id. Even though a defen-
dant pleads guilty, failure to prosecute an appeal when requested to
do so may constitute ineffective assistance. Doyle v. United States,
721 F.2d 1195, 1198 (9th Cir. 1983); Hollis v. United States, 687 F.2d
257, 258-59 (8th Cir. 1982), cert. denied, 459 U.S. 1221 (1983). But
see Barrientos v. United States, 668 F.2d 838, 842-43 (5th Cir. 1982).

Though it is undisputed that counsel did not note an appeal, con-
struing the district court record in the light most favorable to St. Ger-
main -- as we must -- there is a genuine issue of material fact as to
whether St. Germain requested that her attorney note an appeal. St.
Germain's § 2255 motion is declared under penalty of perjury. She
states in regard to the alleged denial of her right to appeal that her
attorney "abandoned" her and that she had"no chance for appeal, no
contact with attorney." In her first response to the Government's
motion for summary judgment (which is unsworn), St. Germain states
that she told her attorney "at the conclusion of her sentencing hearing"
that "she wished to appeal her sentence" and he agreed to do so. She
also averred that her husband witnessed the exchange; she attached to
the response a letter from her husband to the court in which he states
that St. Germain told her attorney "of course I want to appeal" after
the court pronounced sentence. The letter is notarized and ends with
the statement, "I swear the above is true and correct" below the hus-
band's signature. St. Germain also states in her response that repeated
phone calls and letters to the attorney were not answered. St. Germain
asserted these same allegations in her amended response, which is
also unsworn.

The Government attached an affidavit from defense counsel to its
motion for summary judgment, but the document is conspicuously
silent as to whether St. Germain requested the attorney to file a notice
of appeal even though St. Germain alleged in her§ 2255 motion "De-
nial of Right to Appeal." In regard to St. Germain's claim that her
attorney "abandoned" her, the attorney states in his sworn, notarized
affidavit that he notified her that his "obligation to represent her was
terminated upon sentencing." He continues that because she entered

                    5
a guilty plea "with no reservation for appeal, there are no other legal
efforts which I could legitimately exert for her." Though the court
informed St. Germain at her Rule 11 hearing that she could not with-
draw her plea if her sentence was more severe than expected, the
court did not discuss waiver of her appellate rights by pleading guilty.

Noting that the attorney's affidavit was silent as to whether St. Ger-
main requested that her attorney file a notice of appeal, the district
court sua sponte entered an order directing the attorney to provide the
court with an affidavit responding to questions concerning whether St.
Germain requested an appeal and whether the attorney was under the
influence of alcohol at the Rule 11 hearing. It does not appear that St.
Germain was served a copy of this order.4

The attorney filed an affidavit in response to the court's order. The
affidavit is signed and notarized, but though the notary specifically
noted in her certification that the affiant was"personally known" to
her, she also noted he "did/did not take an oath" (emphasis in origi-
nal). Presumably, this certification signifies that the document is
unsworn. The attorney does not certify anywhere in the document that
the information is given under penalty of perjury. 5 The attorney states:

           As to the response to the Court's first question[concern-
           ing whether St. Germain requested him to note an appeal],
           the answer is no. . . . ST. GERMAIN did ask whether or not
           an appeal was a viable alternative and I explained to both
           herself and her male friend . . . that an appeal was not a via-
           ble option. Ms. St. Germain entered into a plea bargain with
           the Government.6
_________________________________________________________________
4 The district court may expand the record to include letters, docu-
ments, and affidavits. See Raines v. United States, 423 F.2d 526, 529-30
(4th Cir. 1970); Rules 4 through 8, Rules Governing§ 2255 Proceedings.

5 In contrast, the attorney's affidavit attached to the Government's
motion for summary judgment states that he was "duly sworn" in the first
paragraph. A different notary also certified that the document was
"[s]worn to."
6 St. Germain unequivocally states in her responses to the summary
judgment motion and in her informal brief in this Court that there was

                    6
The attorney does not directly state whether St. Germain requested
him to file a notice of appeal. There is no indication in the record that
St. Germain was ever served with a copy of this second affidavit.

Construing the above information in the light most favorable to St.
Germain (the nonmoving party), we find there remains a genuine
issue of material fact as to whether St. Germain requested defense
counsel to file a notice of appeal in her case. This genuine issue of
material fact would preclude the district court from finding that St.
Germain had not established cause for her procedural default at the
summary judgment stage. Under Frady and Maybeck, however, St.
Germain must show both cause and prejudice in order to proceed with
her § 2255 claim that she did not understand the consequences of her
guilty plea. Maybeck, 23 F.3d at 891. Even though the court improp-
erly found at the summary judgment stage that St. Germain failed to
establish cause for her default, the court correctly determined that she
did not establish prejudice in regard to this claim.

Statements of fact by a defendant in Rule 11 proceedings may not
ordinarily be repudiated, and findings by a sentencing court in accept-
ing a plea "constitute a formidable barrier" to attacking the plea.
United States v. Lambey, 949 F.2d 133, 137 (4th Cir. 1991) (citing
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)). As the district
court noted,7 the sentencing court apprised St. Germain of the charges
against her, the minimum and maximum penalties she faced under the
Sentencing Guidelines, and the constitutional rights associated with a
jury trial that she waived by pleading guilty.

In response to the court's questioning, St. Germain stated that there
were no promises made to her in exchange for her guilty plea. (The
_________________________________________________________________

never any "plea agreement" or "plea offer" communicated to her. The
record does not contain any plea agreement, and there was no reference
to a plea agreement at the Rule 11 hearing. In responses to the court's
questions on whether there were any "promises" made, St. Germain
stated "No, sir." The prosecutor also stated that there were no promises
made except that he "would do the 5K1 motion."
7 The district court that ruled on Appellant's § 2255 motion is the same
court that conducted her Rule 11 hearing and her sentencing.

                     7
Government acknowledged that it had agreed to make a"5K1 motion").8
St. Germain continued that she understood all that was discussed at
the Rule 11 proceeding, that she understood what she was doing, and
that she wanted the court to accept her plea.

Thus, the district court properly found that St. Germain's guilty
plea was voluntarily entered and that she understood the conse-
quences of her plea. In light of the fact that she later received a
seventy-two month sentence instead of the ten-year minimum dis-
cussed at the Rule 11 hearing, St. Germain failed to establish preju-
dice. Thus, the claim is procedurally barred under Frady and
Maybeck; in addition, the claim is meritless even if it were not barred
from collateral review. We therefore affirm the district court's grant
of summary judgment on this claim.

St. Germain alleged in her § 2255 motion that she received ineffec-
tive assistance of counsel because her attorney consumed alcohol on
the airplane and in the airport en route to her Rule 11 hearing. She
does not state that he was intoxicated at the hearing, but states in con-
clusory fashion that she did not feel he had her"best interests at
heart"; that counsel's performance fell below objective standards of
reasonableness; and that there was a reasonable probability that, but
for counsel's unspecified errors, the result of the proceedings would
have been different. In her responses to the Government's motion for
summary judgment, St. Germain alleged that counsel was ineffective
because he failed to seek a severance and a plea bargain; failed to
communicate a plea offer; and lied about the sentence to be imposed.

Because ineffective assistance of counsel claims are generally not
properly raised on direct appeal from a federal conviction unless such
claim "conclusively appears" in the trial record, St. Germain's claims
in this regard were properly before the court in her§ 2255 motion.
See United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991),
cert. denied, 503 U.S. 997 (1992); United States v. Fisher, 477 F.2d
300, 302 (4th Cir. 1973). To obtain relief from a guilty plea based
upon ineffective assistance of counsel, St. Germain must show that
_________________________________________________________________
8 As previously noted, the court granted the Government's motion for
a downward departure under USSG § 5K1.1 for substantial assistance at
St. Germain's sentencing hearing.

                     8
her counsel was incompetent and that she would not have pled guilty
but for counsel's incompetence. Hill v. Lockhart , 474 U.S. 52, 59
(1985). St. Germain fails to sufficiently establish either incompetence
or prejudice.

The district court explicitly stated that it resolved issues of credibil-
ity based upon the affidavits before it:

          . . . In sum, the Court finds [defense counsel's] testimony
          more credible [than Appellant's] and finds that he was not
          under the influence of alcohol at the Petitioner's Rule 11
          hearing.

When the issue is one of credibility, resolution on the basis of affida-
vits can rarely be conclusive. See Machibroda v. United States, 368
U.S. 487, 493-96 (1962). When resolution of an issue of fact depends
upon credibility determinations, summary judgment is not appropri-
ate. Gray, 925 F.2d at 95.

The court stated that St. Germain claimed that her attorney was "in-
toxicated during the Rule 11 hearing." While that certainly is the
implication of the § 2255 motion, all St. Germain actually states is
that her attorney consumed "double vodka and tonics" on the plane
and at the airport. She also states that he drove the rental car the
wrong way down a one-way street. She never explicitly states that the
attorney was intoxicated.9

The court also stated that the attorney "flatly denies" the accusation
that he was drinking. Though the attorney states in his unsworn docu-
ment that "the answer is no" to the court's question "Were you in any
way under the influence of alcohol when you represented [Appellant]
at her Rule 11 hearing?", the attorney's response does not "flatly
deny" that he was drinking before the hearing. The attorney did not
deny that he was drinking in his prior, sworn affidavit either. He only
denied drinking "double vodka tonics" and noted that "no such drink
is served aboard an aircraft."
_________________________________________________________________
9 As the court noted, St. Germain does not mention consumption of
alcohol or intoxication in her complaint against her attorney filed with
the Florida Bar.

                     9
While the question of whether the attorney was drinking or not
may be a genuine issue of fact when this record is construed in the
light most favorable to St. Germain, the factual dispute is not material
to resolution of St. Germain's claim of ineffective assistance. As the
district court observed, the transcript of the Rule 11 hearing does not
disclose either that the attorney's performance at the Rule 11 hearing
fell below any objective standard of reasonableness or that St. Ger-
main was prejudiced by the conduct of her attorney in any way --
even if her allegations about his drinking are true. Therefore, the dis-
trict court properly granted summary judgment to the Government on
this claim, and we affirm that aspect of the court's order.

St. Germain's "Denial of Right to Appeal" claim is the most prob-
lematic issue before us. When this record is construed in the light
most favorable to St. Germain, there remains a genuine issue of mate-
rial fact as to whether she requested that her attorney note an appeal
from her conviction and sentence. In her sworn complaint, St. Ger-
main states that her attorney abandoned her and that she had "no
chance for appeal." In an unsworn response to the summary judgment
motion, she explicitly states that she informed her attorney that she
wished to appeal and that he agreed to do so; St. Germain attached
to the response a notarized and sworn letter from a witness to that
exchange which confirms her account.

Affidavits from the Government are ambiguous on the issue. The
first affidavit from defense counsel, which is sworn, is silent as to
whether St. Germain requested an appeal. The second affidavit from
the attorney, which was submitted in response to the court's request,
is signed and notarized but not sworn or declared under penalty of
perjury. On whether St. Germain requested him to file a notice of
appeal, the attorney responded, "the answer is no." The attorney con-
tinues that he explained that an appeal "was not a viable option."

Construing this evidence in the light most favorable to St. Germain,
there is a genuine issue of material fact as to whether she requested
her attorney to note an appeal, which precludes the district court from
granting summary judgment on her ineffective assistance claim in that
regard. Therefore, we vacate that portion of the district court's order
that granted summary judgment to the Government on St. Germain's
claim that she received ineffective assistance of counsel because he

                    10
failed to note a requested appeal. We remand that claim to the district
court for further proceedings. We affirm the district court's order in
all other respects. We 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.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED

                    11
