                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-6952


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HUMBERTO DIAZ, Jose Humberto Diaz,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever, III,
Chief District Judge. (7:09-cr-00100-D-3; 7:11-cv-00043-D)


Submitted:   November 5, 2013             Decided:   December 4, 2013


Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.


Vacated in part, dismissed in part, and remanded by unpublished
per curiam opinion.


Humberto Diaz, Appellant Pro Se.     Ethan A. Ontjes, Assistant
United States Attorney, Michael Gordon James, Tobin Webb Lathan,
Seth Morgan Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Humberto    Diaz    seeks       to      appeal     the    district       court’s

order    dismissing    his     28    U.S.C.A.         § 2255     (West       Supp.    2013)

motion.      We previously granted a certificate of appealability

with respect to Diaz’s claim that counsel rendered ineffective

assistance    in   failing     to    note       a   direct     appeal    as    requested.

After    additional    briefing,      we    vacate        in   part    and    remand    and

dismiss the appeal in part.

            In his § 2255 motion, which was verified in compliance

with 28 U.S.C. § 1746 (2006), Diaz claimed that he requested

that counsel file a notice of appeal.                     The Government presented

an affidavit from counsel attesting that Diaz never requested

that a notice of appeal be filed.

            In United States v. Peak, 992 F.2d 39, 41–42 (4th Cir.

1993), this court held that counsel’s failure to file a notice

of appeal as directed constitutes per se ineffective assistance.

Under 28 U.S.C.A. § 2255(b), unless the pleadings, files, and

records conclusively show that the prisoner is not entitled to

relief, the district court shall hold an evidentiary hearing.

United States v. Witherspoon, 231 F.3d 923, 925–27 (4th Cir.

2000).    Whether an evidentiary hearing is necessary is generally

left to the sound discretion of the district judge, but we long

ago   recognized    that     there    remains        “a    category      of    petitions,

usually involving credibility, that will require an evidentiary

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hearing in open court.”        Raines v. United States, 423 F.2d 526,

530 (4th Cir. 1970).

            Diaz’s claim that counsel failed to file a notice of

appeal when requested, if believed, states a colorable claim of

ineffective assistance.        Peak, 992 F.2d at 41–42.         However, the

district court denied relief with respect to this claim after

determining    that    it   lacked   credibility.     In   light    of    Diaz’s

claim, under penalty of perjury, that counsel failed to honor

his request to file a notice of appeal and counsel’s conflicting

affidavit denying that Diaz asked him to note an appeal, the

record did not conclusively show that Diaz was not entitled to

relief.     28 U.S.C.A. § 2255(b); see Raines, 423 F.2d at 530

(“When the issue is one of credibility, resolution on the basis

of affidavits can rarely be conclusive.”).             The district court

therefore     abused   its    discretion     in   concluding,      without    an

evidentiary hearing, that Diaz did not direct counsel to file a

notice of appeal.

            Accordingly, we vacate that portion of the district

court’s   order   denying      relief   on   Diaz’s   claim     that     counsel

rendered ineffective assistance in failing to file a notice of

appeal as requested and remand for further proceedings as to




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this issue. *      We previously denied a certificate of appealability

as   to   Diaz’s    remaining   claim       of   ineffective   assistance    and

dismiss the appeal as to that claim.                  We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.



                                                            VACATED IN PART,
                                                          DISMISSED IN PART,
                                                                AND REMANDED




      *
       By this disposition, we indicate no view                    as   to   the
appropriate outcome of the proceedings on remand.



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