                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-7315



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


DARRYLE EDWARD ROBERTSON, a/k/a Tiger,

                                               Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR-
01-304-JFM; CA-04-1213-JFM)


Submitted:   August 9, 2006                 Decided:   August 30, 2006


Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated in part and remanded by unpublished per curiam opinion.


Darryle Edward Robertson, Appellant Pro Se.      Stephen Matthew
Schenning, John Francis Purcell, Jr., OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Darryle Edward Robertson seeks to appeal the district

court’s order denying relief on his motion filed under 28 U.S.C.

§ 2255 (2000).     Dismissing all other claims, this court granted a

certificate of appealability on a single claim of ineffective

assistance of counsel in which Robertson alleged that he was denied

the right to a direct appeal when counsel failed to comply with his

request to file a notice of appeal.          For the reasons that follow,

we now vacate the district court’s order to the extent that it

denied relief on this claim and remand for further proceedings on

this issue.

            Robertson pled guilty to conspiracy to distribute a

variety of drugs in violation of 21 U.S.C. § 846 (2000).                      The

district court adopted the plea agreement’s recommendation and

sentenced him to 360 months’ imprisonment.                 Robertson did not

appeal.    In his § 2255 motion, signed under penalty of perjury,

Robertson claims that he told his attorney that he wished to appeal

but that counsel failed to comply with his request. Counsel stated

under oath that he has no recollection of Robertson’s request.

            In order to establish a Sixth Amendment violation based

on    counsel’s   failure   to     appeal,   Robertson     must     prove   that

(1)    counsel    was    ineffective     and   (2)    but     for     counsel’s

ineffectiveness,    an    appeal    would    have   been    filed.      Roe    v.

Flores-Ortega, 528 U.S. 470, 476-77 (2000).           Counsel’s failure to


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file   a   notice   of   appeal   when   requested   to     do    so   is    per   se

ineffective assistance.       United States v. Peak, 992 F.2d 39, 42

(4th Cir. 1993).      In light of Robertson’s claim, under penalty of

perjury, that counsel denied his request to file an appeal, coupled

with counsel’s lack of memory, there is a genuine issue of material

fact concerning whether Robertson was denied effective assistance

of counsel.

            Accordingly,     we   vacate    the   portion    of    the      district

court’s order denying relief on this claim and remand for the

limited purpose of permitting the district court to conduct further

proceedings to resolve this issue.           The record, as supplemented,

will then be returned to this court.         We deny Robertson’s motion to

appoint counsel.     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.



                                             VACATED IN PART AND REMANDED




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