                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-6941



UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

           v.

ISABEL GONZALEZ, a/k/a Chabello, a/k/a Isabel Garcia,

                 Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:00-cr-00077-BO-1)


Argued:   March 19, 2014                    Decided:    May 6, 2014


Before MOTZ, KING, and THACKER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Jeffrey Michael Brandt, ROBINSON & BRANDT, PSC,
Covington, Kentucky, for Appellant. Seth Morgan Wood, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.   ON BRIEF: Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Appellant      Isabel    Gonzalez     (“Appellant”),       a   federal

prisoner,   filed      a   28   U.S.C.   § 2255   motion   contending,       inter

alia,   that     he    received     ineffective    assistance     of       counsel,

including claims that his trial counsel failed to file a direct

appeal following his sentencing and failed to properly counsel

him regarding an appeal.           The district court denied relief, and

we granted a certificate of appealability.             Because the district

court   failed    to   consider     Appellant’s    claim   that    he      received

ineffective assistance of counsel due to his trial counsel’s

alleged failure to counsel him regarding an appeal, we remand

the case with instructions to the district court to address this

allegation.

                                         I.

                                         A.

            On January 11, 2001, Appellant pled guilty, pursuant

to a written plea agreement, to conspiracy to import at least

five kilograms of cocaine, in violation of 21 U.S.C. §§ 952 and

963.    Appellant’s written plea agreement contained a standard

appellate waiver, in which Appellant agreed

            [t]o waive knowingly and expressly the right
            to appeal whatever sentence is imposed,
            including any issues that relate to the
            establishment   of   the  Guideline   range,
            reserving only the right to appeal from an
            upward departure from the Guideline range
            that is established at sentencing, and

                                         2
                 further to waive all rights to contest the
                 conviction   or    sentence    in   any   post-
                 conviction    proceeding,      including    one
                 pursuant to 28 U.S.C. § 2255, excepting an
                 appeal or motion based upon grounds of
                 ineffective     counsel     or    prosecutorial
                 misconduct not known to the defendant at the
                 time of the defendant’s guilty plea.

J.A.       17-18,    ¶ c. 1     On   October    2,    2001,    the   district     court

sentenced Appellant to 365 months imprisonment, the top of the

applicable United States Sentencing Guideline range, and five

years of supervised release.              Appellant did not directly appeal.

                                           B.

                 Appellant filed his initial motion for post conviction

relief, pursuant to 28 U.S.C. § 2255, on October 3, 2002.                         Since

the    filing       of   that   motion,    this      case   has   had   a    protracted

procedural history.              In his initial § 2255 motion, Appellant

alleged ineffective assistance of counsel, namely that counsel

failed      to    file   a    requested   notice      of    appeal   and    erroneously

advised him that he had no right to file an appeal.                            Without

holding a hearing, the district court granted the Government’s

motion to dismiss, finding that Appellant waived his right to

file a § 2255 motion in his plea agreement and had offered no

evidence negating the voluntary nature of his plea.                         We granted

Appellant a certificate of appealability and ultimately remanded

       1
       Citations to the Joint Appendix (“J.A.”) refer to the
Joint Appendix filed by the parties in this appeal.



                                            3
the case to the district court for consideration of Appellant’s

ineffective assistance of counsel claims.                          See United States v.

Gonzalez, 97 F. App’x 447 (4th Cir. 2004) (per curiam).

                  On remand, the district court held what it described

as    a    “motions      hearing”      on     December       17,     2004,     at    which    it

questioned         Appellant     and    his      trial      counsel    under        oath   about

Appellant’s claims of ineffective assistance of counsel.                                     The

district court denied Appellant’s request for appointed counsel

to represent him at that hearing.                        Following that hearing, the

district court entered an order on January 14, 2005 (“January

14, 2005 Order”), denying Appellant’s § 2255 motion.                                   On July

22,       2005,    Appellant     filed      a      notice     seeking    to       appeal     the

district          court’s     January       14,      2005     Order.         We      dismissed

Appellant’s appeal for lack of jurisdiction because the notice

of appeal was not timely filed.                      See United States v. Gonzalez,

179 F. App’x 174 (4th Cir. 2006) (per curiam) (explaining that a

notice of appeal must be filed within 60 days after the entry of

the       district     court’s    final         judgment,      and     here,      Appellant’s

notice of appeal was filed more than six months after the entry

of final judgment).

                  On October 20, 2006, Appellant filed a pro se motion

for relief from the district court’s January 14, 2005 Order,

pursuant          to   Rule   60(b)(1)        of     the    Federal     Rules        of    Civil

Procedure, which allows the court to grant relief for reasons of

                                                 4
“mistake,         inadvertence,     surprise,        or    excusable     neglect,”

provided that the motion is made “no more than a year after the

entry   of    the    judgment.”      Fed.     R.    Civ.   P.   60(b)(1),   (c)(1).

Appellant sought leave to appeal the denial of his § 2255 motion

on the grounds that he was improperly denied the assistance of

counsel      at   the   December    17,   2004      evidentiary    hearing.     He

alleged that his failure to note a timely appeal was “excusable

neglect” under Rule 60(b)(1) because he did not receive notice

of the court’s January 14, 2005 Order until June 10, 2005.                     The

district court concluded that it was without jurisdiction to

extend the time to appeal and denied the motion, and we denied a

certificate of appealability and dismissed Appellant’s appeal.

See United States v. Gonzalez, 256 F. App’x 591 (4th Cir. 2007)

(per curiam).

              On March 18, 2010, Appellant filed another motion for

relief from the district court’s January 14, 2005 Order, this

time pursuant to Rule 60(b)(6), which allows relief for “any

other reason that justifies relief.”                 Fed. R. Civ. P. 60(b)(6).

Appellant     maintained    that    he    was      improperly   denied   appointed

counsel for the hearing on December 17, 2004, in violation of

Rule 8 of the Rules Governing § 2255 Proceedings for the United

States District Courts.           The district court denied the motion as

untimely because it was filed more than five years after the

court’s order dismissing Appellant’s § 2255 motion.                      Appellant

                                          5
appealed, arguing that he diligently pursued his claim and filed

within a reasonable time.                 Again, we denied a certificate of

appealability and dismissed the appeal.                        See United States v.

Gonzalez, 407 F. App’x 705 (4th Cir. 2011) (per curiam).

                                              C.

              This matter comes before us again via the district

court’s ruling on Appellant’s third motion filed pursuant to

Rule 60(b) of the Federal Rules of Civil Procedure.                             On August

15,   2011,    Appellant       moved      the      district    court      to   vacate     the

January    14,      2005    Order   as    void,      this     time   pursuant      to    Rule

60(b)(4), which allows for relief from a final judgment, order,

or proceeding based on a finding that the “judgment is void.”

Fed. R. Civ. P. 60(b)(4).                Appellant argued that because he was

deprived of appointed counsel at the December 17, 2004 hearing,

he was deprived of due process, and thus, the district court’s

judgment was void.            After concluding that the December 17, 2004

hearing     should         have,    in    fact,       been     characterized        as    an

“evidentiary hearing” and Appellant should have been appointed

counsel,      the    district       court     determined        in   an    order    issued

September     28,     2011,    that      it   would    “again    hold      a   hearing    to

determine the validity of [Appellant’s] claims of ineffective

assistance of counsel.”             J.A. 269.         After appointing counsel and

setting       an     evidentiary         hearing       --      essentially       granting



                                              6
Appellant’s requested relief -- the district court then denied

Appellant’s Rule 60(b)(4) motion as “moot.”               J.A. 270.

           Appellant’s new counsel then filed a “Memorandum of

Law in Support of Claim Relating to Failure to File Notice of

Appeal.”      J.A.   271.      In   that    memorandum,    Appellant    alleged,

among other claims, that his trial counsel failed to file a

requested notice of appeal and “failed to properly consult with

him regarding an appeal when a rational defendant would want to

appeal, and when he had reasonably demonstrated to counsel that

he was interested in appealing.”             J.A. 272.     The district court

conducted an evidentiary hearing on April 10, 2012.                  During this

hearing, both Appellant and his trial counsel again testified

under oath.

           Trial     counsel    testified     that    Appellant   specifically

instructed her that he wished to cooperate, and she understood

that pursuing an appeal would be contrary to Appellant’s stated

desire to cooperate with authorities.                 Trial counsel did not

specifically     recall     discussing        an     appeal   with     Appellant

following his sentencing hearing, but noted that per her regular

practice, she

           would have told him when I went back to see
           him on that day that if he wanted to appeal
           that   he  could,   but  if   he  wanted  to
           cooperate, then I would advise him against
           appealing, as well as the fact that his plea
           agreement had an appeal waiver in it.


                                        7
J.A. 319.       Trial counsel further testified, however, that she

would not have discussed in any detail the possible advantages

and disadvantages to entering a notice of appeal.

              Appellant testified that he never saw trial counsel

after his sentencing hearing.         He further testified that he had

a fellow inmate draft a letter on his behalf which Appellant

sent to trial counsel asking her to come see him.              According to

Appellant, it was his intention to talk to her about an appeal,

but trial counsel never responded.           Although Appellant did not

submit    a    copy    of   the   letter   for   the    record,   on    cross

examination,     the   Government’s   counsel    read   a   portion    of   the

transcript from the first evidentiary hearing on December 17,

2004, where Appellant’s trial counsel had read the letter into

evidence. 2    Appellant claimed he didn’t “know what the man put in


     2
         Government’s counsel stated,

              That letter read, my name is Isabel Gonzalez
              Garcia.   I got sentenced the other day.   I
              would like to now [sic] how much my fine is
              and I would like you there when I get the
              brief   please.      Before   they  say   my
              cooperation is no good.    I need you there.
              When they come back, please see me so you
              can tell me everything just for about 15
              minutes. I don’t know if they are going to
              send me back to Texas. I don’t know if they
              are going to give me drug program. A lot of
              things I don’t understand.   Please come and
              see me.

J.A. 337.



                                      8
the letter,” but the purpose was to have trial counsel come and

see him.      J.A. 337.       Appellant also averred that he told his

trial counsel that he wanted to appeal because she promised him

that if he took a guilty plea he would be sentenced to only 14

years in prison.        According to Appellant, trial counsel stated

that he could not appeal because he had waived his right to do

so,   and   that   he   could    only   raise    ineffective      assistance    of

counsel, which she would not pursue on his behalf. 3

            Following this evidentiary hearing, the district court

again dismissed Appellant’s § 2255 motion.              In its May 15, 2012

dismissal     order     (“May     15,   2012    Order”),     with    regard    to

Appellant’s    claim     of     ineffective     assistance   of     counsel    for

failure to file a direct appeal, the district court found,

            [Appellant] did not call [trial counsel] to
            request an appeal, nor did her [sic] write
            her a letter unequivocally stating that he
            wished to file an appeal.

                  Accordingly,    in  light     of   [trial
            counsel’s]    testimony    and    [Appellant’s]
            failure to present any evidence to the
            contrary, the Court finds that [Appellant]
            did not make an unequivocal request to
            counsel    to   notice   a     direct   appeal.
            [Appellant’s]      claim    for     ineffective
            assistance as to this matter must therefore
            fail.




      3
       It is unclear from the record before us exactly when this
alleged conversation took place.



                                        9
J.A. 343.     The district court made no findings, however, as to

whether Appellant’s trial counsel was ineffective for allegedly

failing to counsel Appellant regarding an appeal.

            We    granted    a     certificate      of    appealability      on   the

following     issues:         (1)     whether    the       district      court    had

jurisdiction to reopen its 2005 denial of Appellant’s § 2255

motion;     and    (2)      whether       Appellant’s      trial       counsel    was

ineffective in allegedly failing to counsel him regarding an

appeal.

            Both Appellant and the Government agree the district

court had jurisdiction to reopen its 2005 denial of Appellant’s

§ 2255 motion pursuant to Rule 60(b) because Appellant’s Rule

60(b)(4) motion challenged a defect in the collateral review

process, and therefore, was not a successive § 2255 motion.                       The

parties    also   agree     that    the    district      court   did   not   address

whether Appellant’s trial counsel was ineffective in allegedly

failing to counsel Appellant regarding an appeal in the May 15,

2012 Order.       Appellant next argues that his trial counsel was

ineffective because the record demonstrates that he showed an

interest    in    appealing,       but    counsel     failed     to    consult    him

regarding an appeal.             The Government contends, however, that

Appellant’s trial counsel was not ineffective.                   According to the

Government, the district court in its May 15, 2012 Order found

that Appellant did not unequivocally express a desire to appeal

                                          10
to trial counsel.        The Government further contends that finding,

coupled    with    trial    counsel’s      testimony          that       she    did    counsel

Appellant    regarding      an   appeal,        is   enough        for    us    to    conclude

trial counsel was not ineffective.

                                          II.

            The    jurisdictional         issue      presented        by       this    case   --

whether     Appellant’s      Rule     60(b)(4)            motion     should       have    been

treated as a successive § 2255 motion -- is one that we review

de novo.     See United States v. MacDonald, 641 F.3d 596, 609 (4th

Cir. 2011).        However, “[d]istrict court decisions granting or

denying Rule 60(b) relief are reviewed for abuse of discretion,

although the exercise of discretion cannot be permitted to stand

if we find it rests upon an error of law.”                               United States v.

Winestock, 340 F.3d 200, 204 (4th Cir. 2003) (internal quotation

marks omitted).

            In our consideration of the district court’s dismissal

of Appellant’s § 2255 motion, we review the district court’s

legal conclusions de novo and its findings of fact for clear

error.     United States v. Fisher, 711 F.3d 460, 464 (4th Cir.

2013).      “We review de novo mixed questions of law and fact

addressed    by    the     district    court         --    including       the        issue   of

whether a lawyer’s performance was constitutionally adequate.”

United    States    v.   Roane,     378    F.3d       382,     395       (4th    Cir.    2004)

(emphasis supplied).

                                           11
                                    III.
                                       A.

            We first address whether the district court possessed

jurisdiction to reopen its 2005 denial of Appellant’s § 2255

motion.    It is undisputed that this matter found its way before

the   district     court   again   via   Appellant’s        filing   of   a   Rule

60(b)(4) motion.        Although in its September 28, 2011 order the

district court stated it was denying Appellant’s Rule 60(b)(4)

motion as moot, the district court, in fact, granted Appellant

the relief he requested, by holding another evidentiary hearing

with appointed counsel, thereby implicitly granting Appellant’s

motion.      The    district   court        provided   no    other   basis     for

reopening its January 14, 2005 final judgment in Appellant’s

§ 2255    proceeding.      Therefore,       to   establish   jurisdiction,      we

must consider whether a Rule 60(b) motion was the proper vehicle

to reopen the matter. 4

            It is well settled law that a district court lacks

jurisdiction over a successive § 2255 motion unless this court

authorizes such a filing.          See United States v. Winestock, 340


      4
         We   recognize  that   the  Government    has  conceded
jurisdiction.    See Appellee’s Br. 17, 20.     However, because
“subject-matter jurisdiction can never be forfeited or waived;
it involves a court’s power to hear a case,” we pause to assure
ourselves of jurisdiction in this case.       United States v.
Hartwell, 448 F.3d 707, 715 (4th Cir. 2006) (internal quotation
marks omitted).



                                       12
F.3d 200, 205-06 (4th Cir. 2003).               “[D]istrict courts must treat

Rule 60(b) motions as successive collateral review applications

when failing to do so would allow the applicant to evade the bar

against relitigation of claims presented in a prior application

or the bar against litigation of claims not presented in a prior

application.”       Id. at 206 (internal quotation marks omitted,

emphasis   in    original).          However,   not   all   Rule    60(b)   motions

should   “be    treated    as      successive    applications;      instead,     the

proper treatment of the motion depends on the nature of the

claims   presented.”         Id.     at   206-07.       Although    there   is   “no

infallible test” for determining when a Rule 60(b) motion should

be   treated      as   a     successive         application,       “a   relatively

straightforward guide is that a motion directly attacking the

prisoner’s      conviction      or   sentence    will    usually    amount    to   a

successive application, while a motion seeking a remedy for some

defect in the collateral review process will generally be deemed

a proper motion to reconsider.”            Id. at 207.

           Appellant’s Rule 60(b)(4) motion challenged his lack

of appointed counsel to represent him at the December 17, 2004

hearing, during which evidence was adduced in consideration of

his § 2255 motion.           Rule 8(c) of the Rules Governing § 2255

Proceedings for the United States District Courts states, “[i]f

an evidentiary hearing is warranted, the judge must appoint an

attorney to represent a moving party who qualifies [as indigent]

                                          13
under 18 U.S.C. § 3006A.”           Rule 8(c) of the Rules Governing

§ 2255 Proceedings (emphasis supplied).                “[A]ll of our sister

circuits that have considered the issue have held that Rule 8(c)

requires the court to appoint counsel for indigent petitioners

if it holds a § 2255 evidentiary hearing, and the failure to do

so constitutes structural error requiring automatic vacatur or

reversal.”       Bucci v. United States, 662 F.3d 18, 34 (1st Cir.

2011) (following the other circuits and concluding the indigent

defendant was entitled to an evidentiary hearing with appointed

counsel). 5     Moreover, the district court may not avoid appointing

counsel simply by deeming the hearing to be something other than

an   “evidentiary”     hearing.    See,      e.g.,   id.   at   34-35   (quoting

Shepherd v. United States, 253 F.3d 585, 587 (11th Cir. 2001)

(per       curiam)   (“[W]e   observe    that    the    proceedings     clearly

resembled an evidentiary hearing, despite the district court’s

unwillingness to categorize it as such, because the court placed

       5
       See also Graham v. Portuondo, 506 F.3d 105, 107 n.2 (2d
Cir. 2007) (per curiam) (reversing the district court for
failure to appoint counsel for an evidentiary hearing on a
petition filed pursuant to 28 U.S.C. § 2254 and recognizing,
“the appointment of counsel requirement of the Rules Governing §
2254 Cases is identical to that of the Rules Governing § 2255
Proceedings”); United States v. Bendolph, 409 F.3d 155, 160 (3d
Cir. 2005) (en banc); Green v. United States, 262 F.3d 715, 717-
18 (8th Cir. 2001); Shepherd v. United States, 253 F.3d 585, 588
(11th Cir. 2001) (per curiam); Swazo v. Wyo. Dep’t of Corr.
State Penitentiary Warden, 23 F.3d 332, 334 (10th Cir. 1994)
(ruling in the context of a § 2254 proceeding); United States v.
Vasquez, 7 F.3d 81, 85 (5th Cir. 1993); Rauter v. United States,
871 F.2d 693, 695-97 (7th Cir. 1989).


                                        14
Shepherd under oath and questioned him extensively concerning

the basis of his claims. . . . Thus, . . . the district court,

having determined that an evidentiary hearing was necessary, was

obligated under Rule 8 of the Rules Governing § 2255 Motions to

appoint counsel for Shepherd.”).

           Because Appellant’s motion focused on a “defect in the

collateral review process” -- failure to appoint counsel for an

evidentiary hearing -- rather than the substantive allegations

of his claims, it is properly characterized as a Rule 60 motion

rather than as a successive application for collateral review.

Winestock, 340 F.3d at 207.           Hence, we conclude the district

court    had    jurisdiction     to        reopen   the   matter    without

authorization from this court. 6

                                      B.

          We now turn to the merits of Appellant’s appeal --

whether Appellant’s trial counsel was ineffective in failing to

file a direct appeal and in allegedly failing to counsel him

regarding an appeal.

           To   establish      ineffective      assistance   of    counsel,

Appellant must show that: (1) counsel’s failures fell below an

     6
        Whether the district court abused its discretion in
granting Appellant’s Rule 60(b)(4) motion is a nonjurisdictional
issue which the Government waived by neglecting to allege any
pertinent challenge in the district court -- on timeliness, law-
of-the-case, or any other ground.



                                      15
objective      standard         of   reasonableness,           and      (2)     counsel’s

deficient      performance       was    prejudicial.              See    Strickland       v.

Washington, 466 U.S. 668, 687 (1984).                  “[C]ourts must judge the

reasonableness of counsel’s challenged conduct on the facts of

the particular case, viewed as of the time of counsel’s conduct,

and judicial scrutiny of counsel’s performance must be highly

deferential.”       Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)

(internal quotation marks and citations omitted).                             The Supreme

Court   has    “long     held    that   a    lawyer    who     disregards        specific

instructions from the defendant to file a notice of appeal acts

in a manner that is professionally unreasonable.”                         Id.     We have

recognized that this is true “even though the defendant may have

waived his right to challenge his conviction and sentence in the

plea agreement.”         United States v. Poindexter, 492 F.3d 263, 265

(4th Cir. 2007).

              In    Flores-Ortega,          “the      Supreme           Court        applied

Strickland     to   hold    that     counsel’s     duty      to    consult      with     the

defendant      generally        requires     counsel      to      discuss       with    the

defendant      whether     to    pursue     an   appeal.”            Frazer     v.     South

Carolina, 430 F.3d 696, 704 (4th Cir. 2005).                         Specifically, in

Flores-Ortega the Court stated,

              counsel has a constitutionally imposed duty
              to consult with the defendant about an
              appeal when there is reason to think either
              (1) that a rational defendant would want to
              appeal (for example, because there are

                                            16
            nonfrivolous grounds for appeal), or (2)
            that this particular defendant reasonably
            demonstrated   to   counsel that  he  was
            interested in appealing.

528 U.S. at 480 (emphasis supplied).                  In assessing whether an

attorney had a constitutional duty to consult,

            the Court indicated that several factors
            were    relevant,   including  whether   the
            conviction followed a trial or guilty plea.
            In cases involving guilty pleas, the Court
            instructed lower courts to consider whether
            the    defendant   received   the   sentence
            bargained for as part of the plea and
            whether the plea expressly reserved or
            waived appeal rights.

Poindexter, 492 F.3d at 268 (internal quotation marks omitted).

Although not the determinative factor, “a highly relevant factor

in this inquiry will be whether the conviction follows a trial

or a guilty plea, both because a guilty plea reduces the scope

of potentially appealable issues and because such a plea may

indicate    that     the     defendant        seeks     an    end    to      judicial

proceedings.”      Flores-Ortega, 528 U.S. at 480.

            Of   note,     this   duty   to   consult     also     extends    to   the

defendant    who    may    have    waived     his     right   to    challenge      his

conviction and sentence in a written plea agreement.                      As we have

previously recognized, “[i]n preparation for the appellate phase

of the case, an attorney in an appeal waiver case still owes

important duties to the defendant.”                   Poindexter, 492 F.3d at

271.


                                         17
             First   and   foremost,  the   attorney,   as
             recognized in Flores-Ortega, has the duty to
             respect the appellate wishes of his client
             by filing a timely notice of appeal if he is
             unequivocally instructed to do so.    Second,
             as further recognized in Flores-Ortega, even
             if his client does not express (or clearly
             express) a desire to appeal, the attorney
             may be required to file a timely notice of
             appeal after appropriate consultation with
             . . . his client.

Id. (internal quotation marks omitted).                     This, however, does not

end the court’s inquiry.

             In addition to showing that counsel’s performance in

failing to consult was deficient, the movant must also establish

prejudice resulting from such failure.                      Flores-Ortega, 528 U.S.

at   484.     “If     counsel      fails     to    consult,           the    defendant   may

demonstrate prejudice by showing that a rational defendant would

want to appeal.         The defendant may do this by demonstrating

either a) there were non-frivolous issues for appeal, or b) he

had adequately indicated his interest in appealing.”                                Frazer,

430 F.3d at 707-08.          However, “[i]n demonstrating prejudice, the

defendant     is    under     no    obligation         to       demonstrate       that   his

hypothetical appeal might have had merit.”                           Poindexter, 492 F.3d

at 269 (internal quotations omitted).

             Thus, even when, as here, a defendant agrees to an

appeal      waiver,     his        counsel        still         owes        him   effective

representation        with         respect        to        a        potential      appeal.

Specifically,       effective       representation              in    this    circumstance

                                           18
includes:      (1) filing a timely notice of appeal if requested to

do so, and (2) consultation regarding an appeal whether or not

instructed to file an appeal when there are nonfrivolous grounds

for appeal or when the defendant demonstrates a mere interest in

appealing.         See Flores-Ortega, 528 U.S. at 480; Poindexter, 492

F.3d at 271.         Here, the district court made findings as to the

first duty, but failed to do so as to the second.

              In    the    May     15,     2012   Order,     the    district      court

specifically found that Appellant “did not call [trial counsel]

to request an appeal, nor did her [sic] write her a letter

unequivocally stating that he wished to file an appeal.”                            J.A.

343.     Thus, the district court found that Appellant “did not

make    an    unequivocal        request    to    counsel    to    notice     a   direct

appeal,” and concluded that Appellant’s “claim for ineffective

assistance as to this matter must therefore fail.”                      Id.

              This leaves open the second inquiry as to whether his

trial counsel failed to counsel Appellant regarding an appeal,

and, if so, whether the failure amounted to a constitutionally

deficient performance.              The district court failed to address

this issue inasmuch as it made no findings in this regard.                         As a

result, we must return this matter to the district court to make

findings based on the record before it, or if necessary, on the

basis    of    a     new   evidentiary        hearing       regarding    Appellant’s



                                            19
allegation that his trial counsel was ineffective in allegedly

failing to counsel him regarding an appeal.

                               IV.
          Pursuant to the foregoing, this matter is remanded to

the district court.



                                              VACATED AND REMANDED




                               20
