                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-7741



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MANUEL DOMINGO SANTANA, a/k/a Manny Santana,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CR-04-39-1-LMB; CA-05-463)


Submitted:   January 23, 2008             Decided:   February 4, 2008


Before MOTZ and SHEDD, Circuit Judges, and WILKINS, Senior Circuit
Judge.


Vacated and remanded by unpublished per curiam opinion.


Manuel Domingo Santana, Appellant Pro Se. Kelli Marie Ferry, James
Ryan, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Manuel Domingo Santana pled guilty to conspiracy to

distribute MDMA “Ecstacy” and was sentenced on May 18, 2004, to 108

months of imprisonment.    He did not file a direct appeal.       In April

2005, Santana filed a 28 U.S.C. § 2255 (2000) motion, alleging

ineffective   assistance   of   counsel    and   that   his   sentence   was

erroneous in light of United States v. Booker, 543 U.S. 220 (2005).

The district court denied relief on Santana’s Booker claim and

ordered the Government to respond to Santana’s claim of ineffective

assistance on the ground that defense counsel failed to file a

notice of appeal as requested by the defendant.                Noting that

Santana had waived his right to appeal, the court concluded that

Santana failed to request that counsel file a notice of appeal.

The court made this factual finding on the basis of conflicting

affidavits made by Santana and trial counsel.

          We granted a certificate of appealability on the issue of

whether Santana’s trial counsel provided ineffective assistance by

failing to file a notice of appeal as requested in violation of

United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993), and ordered

additional briefing on this issue.        See 4th Cir. R. 22(a).     After

reviewing the arguments and record on appeal, we vacate and remand

for an evidentiary hearing on Santana’s claim that trial counsel

failed to file a notice of appeal as requested.




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           An attorney who fails to file an appeal after being

instructed to do so by his client is per se ineffective.              Roe

v. Flores-Ortega, 528 U.S. 470, 476-77 (2000); see also Peak, 992

F.2d at 42 (holding that criminal defense counsel’s failure to file

notice of appeal when requested to do so is per se ineffective

assistance).   This is true even if the defendant has waived his

right to appeal.     United States v. Poindexter, 492 F.3d 263, 273

(4th Cir. 2007).     “Under our approach, when a defendant brings a

§ 2255 claim based on his attorney’s failure to file a requested

notice of appeal, the district court should hold a hearing if it is

unclear in the record whether the attorney was so instructed.” Id.

at 272.    Although it is not per se error for a district court to

make   credibility   determinations   on   the   basis   of   conflicting

affidavits, see, e.g., Strong v. Johnson, 495 F.3d 134, 139-40 (4th

Cir. 2007), we conclude that in this case the record as to whether

Santana requested an appeal is insufficiently clear to permit

resolution of the issue without an evidentiary hearing.

           Accordingly, we vacate and remand for an evidentiary

hearing regarding this factual dispute.          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.

                                                  VACATED AND REMANDED




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