                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-7401



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


PHILIP B. GREER,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (CR-01-11; CA-04-46-1)


Submitted:   January 22, 2007          Decided:     February 22, 2007


Before TRAXLER, KING, and GREGORY, Circuit Judges.


Dismissed in part; vacated in part and remanded by unpublished per
curiam opinion.


Philip B. Greer, Appellant Pro Se. Amy Elizabeth Ray, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Philip B. Greer seeks to appeal the district court’s

order denying relief on his 28 U.S.C. § 2255 (2000) motion.           This

court granted a certificate of appealability on the issue of

whether Greer received ineffective assistance of counsel because

counsel did not file a notice of appeal.                See, e.g., United

States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993).           The Government

filed a brief conceding that the district court erred by denying

this claim despite the fact Greer alleged under penalty of perjury

that he requested his counsel to file a notice of appeal.                  We

dismiss in part and vacate in part and remand.

           Because the record did not conclusively show that Greer’s

counsel was not ineffective for not filing a notice of appeal, we

vacate in part the district court’s order and remand to the

district court for an evidentiary hearing on this issue.

           Greer also sought to appeal the district court’s order

denying   relief   on   his   other   claims.    This    court   granted   a

certificate of appealability only on the issue regarding whether

counsel was ineffective for not filing a notice of appeal.            That

part of the order denying relief on the remaining claims is not

appealable unless a circuit justice or judge issues a certificate

of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of

appealability will not issue absent “a substantial showing of the

denial of a constitutional right.”        28 U.S.C. § 2253(c)(2) (2000).


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A prisoner satisfies this standard by demonstrating that reasonable

jurists would find that any assessment of the constitutional claims

by    the   district     court    is   debatable     or    wrong   and   that     any

dispositive procedural ruling by the district court is likewise

debatable.       Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);

Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d

676, 683-84 (4th Cir. 2001).            We have independently reviewed the

record and conclude Greer has not made the requisite showing as to

his remaining claims.

             Accordingly, we grant Greer’s motion to proceed in forma

pauperis and we vacate that part of the district court’s order

denying Greer’s claim he received ineffective assistance of counsel

for    failing    to   file   a   notice     of   appeal    and    remand   for   an

evidentiary hearing on this issue.             As to the remaining claims, we

deny a certificate of appealability and dismiss in part the appeal.

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.



                                                            DISMISSED IN PART;
                                                  VACATED IN PART AND REMANDED




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