                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-7846


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

EDGAR BENITEZ HERNANDEZ, a/k/a Clavo, a/k/a Shadow,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Claude M. Hilton, Senior
District Judge. (1:10-cr-00223-CMH-1; 1:14-cv-01042-CMH)


Submitted:   April 17, 2015                 Decided:   May 19, 2015


Before MOTZ, DUNCAN, and HARRIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Edgar Benitez Hernandez, Appellant Pro Se. Patricia Marie
Haynes, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Edgar     Benitez     Hernandez        seeks      to     appeal     the       district

court’s order dismissing his 28 U.S.C. § 2255 (2012) motion.                                We

grant     a    certificate      of     appealability,           vacate     the       district

court’s order, and remand for further proceedings.

       Hernandez pled guilty to two counts of use and discharge of

a firearm during a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A) (2012).            Hernandez did not appeal his conviction

or sentence; instead, he filed a § 2255 motion alleging that he

directed his counsel to note an appeal but counsel failed to do

so.      Without conducting an evidentiary hearing or determining

whether Hernandez unequivocally asked counsel to file a notice

of    appeal,    the    district       court      denied      relief     on       Hernandez’s

§ 2255    motion.       In   so      doing,       the    district      court       held   that

because       Hernandez’s       plea    agreement          contained       an       appellate

waiver,       counsel   acted     reasonably        by    not   filing        a    notice   of

appeal and counsel’s failure did not prejudice Hernandez.

       “When the district court denies § 2255 relief without an

evidentiary hearing, the nature of the court’s ruling is akin to

a ruling on a motion for summary judgment [and] we review the

facts in the light most favorable to the § 2255 movant.”                              United

States    v.     Poindexter,      492    F.3d       263,      267   (4th      Cir.     2007).

Accordingly, for the purposes of this appeal, we must assume, as



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Hernandez contends, that he unequivocally asked counsel to file

a notice of appeal.       Id. at 267, 269.

       The Sixth Amendment obligates counsel to file a notice of

appeal when a defendant requests him to do so; a waiver of

appellate    rights    in      a    defendant’s      plea      agreement      does    not

absolve counsel of this duty.              Id. at 268-69.         Counsel’s failure

to file a requested notice of appeal prejudices the defendant

because it deprives him of his appellate proceeding.                             Id. at

269.

       Accordingly, we grant a certificate of appealability, grant

Hernandez leave to proceed in forma pauperis, and vacate the

district    court’s    order       denying      relief    on    Hernandez’s      § 2255

motion.      Because it is not apparent from the record whether

counsel    fulfilled     his       obligations      in   regard     to    Hernandez’s

appellate rights, see Roe v. Flores-Ortega, 528 U.S. 470, 480

(2000),    Poindexter,      492     F.3d   at     271,   we    remand    so    that   the

district court can make this determination.                       We dispense with

oral   argument   because          the    facts    and   legal     contentions        are

adequately    presented      in     the    materials     before    this       court   and

argument would not aid the decisional process.



                                                               VACATED AND REMANDED




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