                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 01-6148
ARTHUR W. PRIVOTT, a/k/a Big Bud,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
       for the District of North Carolina, at Elizabeth City.
             Terrence W. Boyle, Chief District Judge.
                    (CR-98-5, CA-99-73-2-BO)

                  Submitted: February 26, 2002

                      Decided: March 29, 2002

    Before WIDENER, WILKINS, and KING, Circuit Judges.



Vacated and remanded by unpublished per curiam opinion.


                            COUNSEL

Arthur W. Privott, Appellant Pro Se.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. PRIVOTT
                              OPINION

PER CURIAM:

   Arthur W. Privott appeals from the dismissal of his 28 U.S.C.A.
§ 2255 (West Supp. 2001) motion, attacking his conviction and sen-
tence for violating 21 U.S.C.A. § 846 (West 1999 & Supp. 2001). For
the following reasons, we vacate and remand for further proceedings.

   Privott claims that his counsel was ineffective for failing to file a
notice of appeal following his sentencing. The district court rejected
this claim, finding that Privott failed to show prejudice. This finding
was erroneous, however, under this court’s decision in United States
v. Peak, 992 F.2d 39, 42 (4th Cir. 1993). In Peak, we held that coun-
sel’s failure to pursue an appeal requested by a defendant constitutes
ineffective assistance of counsel regardless of the likelihood of suc-
cess on the merits. Id. Thus, if counsel promises to note an appeal and
then fails to do so, petitioner is entitled to relief in the form of a
belated appeal. Id.; see also Roe v. Flores-Ortega, 528 U.S. 470
(2000).

   We note that this case differs from Peak in that the parties dispute
whether Privott directed his counsel to file a notice of appeal. Further,
the record is unclear as to whether or not Privott’s counsel consulted
with him regarding an appeal. Even if a defendant does not specifi-
cally instruct counsel to appeal, counsel may still have a duty to con-
sult with his client about an appeal. Roe, 528 U.S. at 478. These
issues must be addressed in the first instance by the district court.

   Accordingly, we grant a certificate of appealability and vacate the
district court’s order and remand for compliance with this opinion,
Peak, and Roe. We decline to address any other claims on appeal. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

                                        VACATED AND REMANDED
