                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-6960



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


DINARLDO MATTHEWS, a/k/a Kasheem Allah, a/k/a
Ki,

                                               Defendant - Appellant.


                              No. 05-7532



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


DINARLDO MATTHEWS,

                                               Defendant - Appellant.


Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk.      Robert G. Doumar, Senior
District Judge. (CR-00-213; CA-05-339)


Submitted:   April 11, 2007                 Decided:   July 9, 2007


Before WILKINSON, KING, and GREGORY, Circuit Judges.
No. 05-6960, affirmed; No. 05-7532, vacated and remanded, by
unpublished per curiam opinion.


Dinarldo Matthews, Appellant Pro Se.      Kevin Michael Comstock,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

             Dinarldo Matthews appeals the district court's order

denying relief on his 28 U.S.C. § 2255 (2000) motion (No. 05-7532),

and his motion for reconsideration under Fed. R. Civ. P. 60 (No.

05-6960).1    In No. 05-6960, we affirm the district court’s denial

of Matthews’ Fed. R. Civ. P. 60 motion for the reasons stated by

the district court.      See United States v. Matthews, No. 2:00-cr-

00213    (E.D.   Va.   Apr.   13,    2005).    We   previously   granted   a

certificate of appealability in No. 05-7532 on a single claim of

ineffective assistance of counsel, in which Matthews 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.

             Matthews pled guilty to one count of conspiracy to

distribute    and   possess   with    intent   to   distribute   heroin   and

cocaine, and was sentenced to 225 months' imprisonment. He did not

appeal.    In his § 2255 motion, which was sworn and verified in



     1
      Matthews has filed a Motion for Clarification regarding the
court’s decision to consolidate these appeals. In that motion,
Matthews expresses concern that the court might apply the
certificate of appealability standard, 28 U.S.C. § 2253(c)(2)
(2000), to appeal No. 05-6960.         We grant the Motion for
Clarification and explain that the court has not held the appeal in
No. 05-6960 to the certificate of appealability standard set forth
in § 2253(c)(2).

                                     - 3 -
compliance with 28 U.S.C. § 1746 (2000), Matthews claimed that

after the sentencing hearing he asked his counsel to file a notice

of appeal, and his attorney agreed to do so.     Matthews's counsel,

however, stated in an affidavit filed by the Government that

Matthews never asked him to file an appeal.

          In United States v. Peak, 992 F.2d 39, 41 (4th Cir.

1993), this court held that the Sixth Amendment obligates counsel

to file an appeal when his client requests him to do so.     Failure

to note an appeal upon timely request constitutes ineffective

assistance of counsel, regardless of the likelihood of success on

the merits.     Id. at 42.   Counsel who consults with the defendant

and fails to follow the defendant’s express instructions to appeal

performs in a professionally unreasonable manner.        See Roe v.

Flores-Ortega, 528 U.S. 470, 477 (2000).     Unless it is clear from

the pleadings, files, and records that the prisoner is not entitled

to relief, § 2255 makes an evidentiary hearing in open court

mandatory.     28 U.S.C. § 2255; Raines v. United States, 423 F.2d

526, 529 (4th Cir. 1970); United States v. Witherspoon, 231 F.3d

923, 925-27 (4th Cir. 2000).

             In light of Matthews's claim, under penalty of perjury,

that counsel failed to honor his request to file an appeal, and

counsel's conflicting affidavit denying that Matthews asked him to

note an appeal, we conclude there is a genuine issue of material

fact concerning whether Matthews was denied effective assistance of


                                 - 4 -
counsel.    Moreover,   we   disagree   with    the   district   court’s

conclusion that counsel is not obligated to file a requested notice

of appeal when a defendant waives his right to appeal pursuant to

a plea agreement.    See Camposano v. United States, 442 F.3d 770,

771-72 (2d Cir. 2006); Gomez-Diaz v. United States, 433 F.3d 788,

793-94 (11th Cir. 2005); United States v. Garrett, 402 F.3d 1262,

1266-67 (10th Cir. 2005).    Finally, because Matthews had ten days

in which to decide whether to appeal, Fed. R. App. P. 4(b), we

cannot agree with the district court’s conclusion that Matthews was

bound by his statement at sentencing that he did not plan to

appeal.

           Accordingly, we vacate that portion of the district

court's order denying relief on this claim and remand for further

proceedings.2   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.



                                               No. 05-6960 - AFFIRMED;

                                 No. 05-7532 - VACATED AND REMANDED




     2
      By this disposition, we indicate no view             as    to   the
appropriate outcome of the proceedings on remand.

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