                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-7917



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


RICHARD HARRY ROBERTSON, JR.,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (CR-02-19; CA-04-121)


Submitted:   February 7, 2007              Decided:   March 5, 2007


Before MICHAEL, KING, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Richard Harry Robertson, Jr., Appellant Pro Se. Thomas Richard
Ascik, Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Richard   Harry   Robertson,      Jr.,    appealed   the   district

court’s order dismissing his 28 U.S.C. § 2255 (2000) motion, and we

granted a certificate of appealability on Robertson’s claim that

his counsel was ineffective by failing to appeal his conviction

despite Robertson’s request that he do so.*            For the reasons that

follow, we vacate the district court’s order as to Robertson’s

ineffective assistance of counsel claim and remand for further

proceedings.

           Unless    the   motion,    files,   and    records   of    the   case

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

district court shall hold a prompt hearing to determine the issues

and make findings of fact and conclusions of law as to the movant’s

claims.    28 U.S.C. § 2255.        A hearing is required when a movant

presents   a   colorable    Sixth    Amendment      claim   showing   disputed

material facts and a credibility determination is necessary to

resolve the issue. See United States v. Witherspoon, 231 F.3d 923,

925-27 (4th Cir. 2000); United States v. Peak, 992 F.2d 39, 42 (4th

Cir. 1993).

           In its informal brief to this court, the Government

concedes “that the record before the district court raised a



     *
      In the same order, we denied a certificate of appealability
and dismissed Robertson’s appeal with respect to his remaining
claim that his sentence violated United States v. Booker, 543 U.S.
220 (2005).

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genuine issue of material fact as to whether trial counsel’s

performance was per se ineffective under Peak.    Accordingly, the

district court’s summary dismissal of this claim without resolving

the dispute was in error.”   We agree.   Accordingly, we vacate the

district court’s order as to Robertson’s ineffective assistance of

counsel claim and remand that claim for further proceedings.    We

grant Robertson leave to proceed in forma pauperis on appeal.   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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