                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-6256



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


ERNIE EMBREE,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James P. Jones, Chief District
Judge. (CR-01-2; CA-03-445-7)


Submitted:   January 31, 2006              Decided:   March 1, 2006


Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Ernie Embree, Appellant Pro Se.    Randy Ramseyer, United States
Attorney, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Ernie Embree appeals from the district court’s order

denying relief on his motion filed under 28 U.S.C. § 2255 (2000).

We previously granted a certificate of appealability as to Embree’s

claim    that   his   attorney   provided   ineffective   assistance   with

respect to filing a notice of appeal.*        After receiving additional

briefing on this issue, we now vacate the district court’s order

and remand for further proceedings.

            Embree asserted that he attempted to contact counsel

about an appeal but was unable to do so.          Counsel responded that

Embree never contacted him concerning an appeal.             The district

court denied the § 2255 motion, relying on Embree’s waiver in his

plea agreement of the right to file a § 2255 motion.             The court

also denied relief on the merits, finding that Embree failed to

show that counsel’s performance was deficient under Strickland v.

Washington, 466 U.S. 668, 688-89, 694 (1984), because he did not

state that he wanted to appeal and did not inform counsel of this

desire.

            We have recently upheld the validity in a plea agreement

of the waiver of collateral review, applying the same reasoning and

standards as are applied to waivers of the right to appeal.         United

States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005).           The court



     *
      We denied a certificate of appealability             and   dismissed
Embree’s appeal as to his remaining issues.

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in Lemaster specifically noted that Lemaster did not assert any of

the recognized exceptions to appeal waivers, but opined that the

same exceptions would apply to waivers of collateral review.               Id.

at 220 n.2.

           Here, Embree has asserted that counsel’s “deficiency

deprived [him] of the appellate proceeding altogether.”              Roe v.

Flores-Ortega, 528 U.S. 470, 483 (2000).          This claim is analogous

to the claim asserted in United States v. Attar, 38 F.3d 727,

732-33 (4th Cir. 1994), where we held that the waiver of the right

to appeal did not bar a claim concerning a complete lack of counsel

during sentencing proceedings.           Applying this exception to the

waiver,   we   conclude    that    Embree’s    waiver   of   his   right    to

collaterally    attack    his    sentence,    coupled   with   his   express

reservation of the right to file a direct appeal, does not bar his

claim that his attorney failed to consult him concerning an appeal.

See United States v. Garrett, 402 F.3d 1262 (10th Cir. 2005)

(strictly construing language of waiver to not preclude claim of

counsel’s ineffectiveness for failing to note appeal); United

States v. Gomez-Diaz,             F.3d       , 2005 WL 3465538 (11th Cir.

2005) (holding that waiver did not preclude claim that counsel

failed to consult regarding appeal).

           An attorney who fails to file an appeal after being

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

Ortega, 528 U.S. at 477.        When, however, a client does not clearly


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convey his wishes about an appeal to counsel, the determination as

to whether counsel has been ineffective by failing to appeal

depends upon “whether counsel in fact consulted with the defendant

about an appeal.”        Id. at 478.      Where, as here, the claim is that

counsel has not consulted with his client, the court must then

determine      whether    the   failure        to   consult   itself    constitutes

deficient performance.          Id.    If the court concludes that counsel’s

failure to consult amounted to deficient performance, the defendant

also “must demonstrate that there is a reasonable probability that,

but for counsel’s deficient failure to consult with him about an

appeal, he would have timely appealed.”                 Id. at 484.

            In the instant case, Embree states that he attempted to,

but was unable to contact counsel about an appeal.                     The district

court denied relief, reasoning that Embree never asked counsel to

note an appeal.          However, the district court did not consider

whether, in this case, counsel had a “constitutionally imposed duty

to consult” with Embree about an appeal, and if so, whether there

is a reasonable probability that Embree would have timely appealed,

but for counsel’s failure to so consult.                 Id. at 480, 484.

            Because the district court did not apply this standard,

we vacate the district court’s opinion as to this issue and remand

to the district court for a consideration of whether counsel’s

failure   to    consult    with       Embree    about   an    appeal   amounted   to

ineffective assistance. We deny Embree’s motion for appointment of


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counsel on appeal and 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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