                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-7067


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

SAUL LOPEZ VELASCU,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.      Terrence W. Boyle,
District Judge. (7:08-cr-00110-BO-1; 7:10-cv-00023-BO)


Submitted:   April 25, 2011                 Decided:   May 18, 2011


Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Saul Lopez Velascu, Appellant Pro Se.    Joshua Bryan Royster,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Saul     Lopez       Velascu         seeks      to     appeal       the       district

court’s     order     denying         relief        on     his     28       U.S.C.A.      §     2255

(West Supp. 2010)          motion.             We        granted        a    certificate          of

appealability on Velascu’s claim that counsel was ineffective in

failing to note an appeal, as directed.

            Velascu pleaded guilty to one count of conspiracy to

distribute       cocaine,     one      count       of     possession         with     intent      to

distribute cocaine, and one count of possession of firearms by

an illegal alien.           He did not appeal.                    In his § 2255 motion,

Velascu claimed that he asked his counsel to file a notice of

appeal, and that his attorney agreed to do so.                               Although Velascu

indicated in an “Acknowledgment of Appellate Rights and Election

Regarding       Appeal”    that       he   did      not    wish     to      file     an   appeal,

Velascu claims that his counsel informed him he needed to sign

that document in order for the appeal to go forward and that he

did so because he could not speak or understand English.

            In      United       States          v.       Peak,     992       F.2d        39,     41

(4th Cir. 1993),          this    court       held        that     the       Sixth     Amendment

obligates counsel to file an appeal when her client requests her

to   do   so.       Failure      to    note      an      appeal     upon      timely      request

constitutes ineffective assistance of counsel regardless of the

likelihood of success on the merits.                         Id. at 42.             Counsel who

consults with the defendant and fails to follow the defendant’s

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express   instructions     to    appeal       performs     in    a   professionally

unreasonable manner.        See Roe v. Flores-Ortega, 528 U.S. 470,

477 (2000).      Unless it is clear from the pleadings, files, and

records   that   the    prisoner     is   not   entitled        to   relief,   § 2255

makes an evidentiary hearing in open court mandatory.                       28 U.S.C.

§ 2255(b); United States v. Witherspoon, 231 F.3d 923, 925-27

(4th Cir. 2000);       Raines   v.   United      States,    423      F.2d   526,    529

(4th Cir. 1970).

            Here, Velascu’s claim that counsel failed to file a

notice of appeal when requested to do so, if believed, states a

colorable Sixth Amendment claim.              Velascu swore under penalty of

perjury that he expressed his desire to appeal and that counsel

directed him to sign the acknowledgment in order to do so.                         This

statement   directly     contradicts       counsel’s      sworn      statement     that

she informed Velascu, through an interpreter, of his right to

file an appeal and he elected not to exercise that right. *

            Because    resolution     of      competing    versions      of    events,

both made under oath, lies in the first instance within the

province of the district court, we vacate the district court’s

order and remand for determination of whether Velascu received


     *
       Counsel’s affidavit was submitted by the Government as an
exhibit to a pleading filed in this court.      Accordingly, the
district court did not have an opportunity to assess it in
proceedings prior to the present appeal.



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ineffective assistance of counsel, in light of the conflicting

affidavits.    Raines, 423 F.2d at 530 (“When the issue is one of

credibility, resolution on the basis of affidavits can rarely be

conclusive.”).    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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