                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-6093



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JAMES DARRELL DALTON,

                                            Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.    G. Ross Anderson, Jr., District
Judge. (CR-02-236; CA-03-1411-6)


Submitted:   April 27, 2005                 Decided:   May 17, 2005


Before MICHAEL, KING, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


James Darrell Dalton, Appellant Pro Se.      Kevin Frank McDonald,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           James Darrell Dalton appeals the district court’s orders

denying relief on his motion filed pursuant to 28 U.S.C. § 2255

(2000) and denying his motion for reconsideration.                   In the § 2255

motion, Dalton raised several claims, notably that counsel was

ineffective for failing to file a notice of appeal from his

conviction under 18 U.S.C. § 2252A(a)(5)(B) (2000).                  We previously

entered an order granting Dalton a certificate of appealability on

this issue.        In the same order, we denied a certificate of

appealability and dismissed Dalton’s appeal with respect to all

other claims.     For the reasons that follow, we vacate the district

court’s order insofar as it denied relief on the notice of appeal

issue and remand for an evidentiary hearing.

           In     his    motion,     Dalton   contended      that   he   asked     his

attorney, Richard Warder, to file a notice of appeal, but Warder

refused. Warder filed an affidavit with the district court stating

that, following Dalton’s guilty plea, Dalton began collecting

evidence that might support a Fed. R. Crim. P. 35(b) motion for

reduction of sentence.           Dalton spoke with Warder and others in

Warder’s   office,       as   well   as    with    an   Assistant   United   States

Attorney, about working with the Government in an effort to reduce

his   sentence.         Warder   stated     that    Dalton   was    aware   that    no

meritorious grounds for appeal existed and that pursuing a Rule

35(b) motion likely would better serve him.


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              Dalton responded with a sworn declaration insisting that

he informed Warder immediately after sentencing that he wished to

appeal.   Warder, however, refused to file an appeal because there

were no grounds for appeal.

              The   district   court    found   that    Dalton’s   claim   was

unsupported by any evidence and contrary to the evidence of record,

including Warder’s affidavit and the affidavit of an FBI agent that

corroborated Warder’s version of events.           Thus, the court made a

credibility determination against Dalton.

              “Unless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief, the

court shall . . . grant a prompt hearing thereon, determine the

issues, and make findings of fact and conclusions of law with

respect thereto.”         28 U.S.C. § 2255.     A hearing is required if a

credibility determination is necessary in order to resolve an issue

in a § 2255 motion.         United States v. Witherspoon, 231 F.3d 923,

925-27 (4th Cir. 2000); Raines v. United States, 423 F.2d 526, 530

(4th Cir. 1970).      Failure of an attorney to file a requested notice

of   appeal    from   a   criminal   conviction    is   per   se   ineffective

assistance of counsel.         See Roe v. Flores-Ortega, 528 U.S. 470,

476-77 (2000); United States v. Peak, 992 F.2d 39, 42 (4th Cir.

1993).

              Because resolution of the ineffectiveness claim turns on

credibility, we vacate and remand for further proceedings.                  We


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dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before us and argument

would not aid the decisional process.   The motions for bail and to

expand the certificate of appealability to include a claim under

Blakely v. Washington, 124 S. Ct. 2531 (2004), are denied.



                                              VACATED AND REMANDED




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