                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-7718



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus

JASMINE ROCHELLS ROBESON,
                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-02-140; CA-04-335-3-2MU)


Submitted:   October 21, 2005             Decided:   January 13, 2006


Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.


Vacated in part and remanded by unpublished per curiam opinion.


Jasmine Rochells Robeson, Appellant Pro Se. Kimlani S. Murray,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Jasmine     Rochells   Robeson     appealed    from   the    district

court’s order denying relief on her motion asserting numerous

claims under 28 U.S.C. § 2255 (2000).               Deferring action on the

remainder of the appeal, this court granted a certificate of

appealability on a single claim of ineffective assistance of

counsel in which Robeson alleged that she was denied the right to

a direct appeal when counsel failed to comply with her request to

file a notice of appeal.          For the reasons that follow, we now

vacate the district court’s order to the extent that it implicitly

denied relief on this claim and remand for further proceedings on

this issue.

           Robeson pled guilty without a plea agreement to one count

of conspiracy to possess with intent to distribute fifty grams of

cocaine base, in violation of 21 U.S.C. §§ 841(a)(l), 846 (2000).

The district court sentenced her to 121 months in prison.                Robeson

did not file a direct appeal.

           Pursuant to 28 U.S.C. § 2255, Robeson filed a motion to

vacate, set aside, or correct her sentence alleging:                    (1) her

guilty plea was not knowing and voluntary because she was unaware

that she would face ten years in prison; (2) her conviction was

obtained by use of illegally seized evidence because authorities

claimed to have a search warrant but never showed it to her; and

(3)   counsel    was   ineffective    for     failing     to   assist   her    in

cooperating     with   the   government      in   order   to   obtain   a   lower

sentence. Ten days after filing her initial § 2255 motion, Robeson


                                     - 2 -
filed a second § 2255 motion asserting two additional claims:    (4)

her conviction was improperly based on the total weight of the

substance seized, rather than on the pure drug weight; and (5) she

was denied the right to appeal because counsel ignored her specific

request to note an appeal.    The district court denied relief under

§ 2255 without obtaining a response from the government. The court

addressed the three claims raised in Robeson’s initial § 2255

motion, but did not address the two claims raised in the later

motion.1    Robeson timely appealed.2
             We find that Robeson amended her initial § 2255 motion

as of right under Rule 15(a) of the Federal Rules of Civil

Procedure because she filed the second § 2255 motion only ten days

after filing the first motion and before a responsive pleading was

filed.     The district court’s failure to address the claims raised

in the amended § 2255 motion amounted to a denial of those claims.

Voliva v. Seafarers Pension Plan, 858 F.2d 195, 197 (4th Cir.

1988).

            In the second § 2255 motion, signed under penalty of
perjury, Robeson claims that she told her attorney that she wished

to appeal but that counsel failed to comply with her request.    The

government disputes Robeson’s claim, citing to counsel’s affidavit

denying that Robeson asked her to file a notice of appeal.


     1
      The second § 2255 motion is included in the district court’s
civil pleadings file, but does not appear in the district court’s
criminal pleadings file.
     2
      Robeson asserts Claims 1, 2, 3, and 5, in her informal
appellate brief, abandoning Claim 4. See 4th Cir. R. 34(b).

                                 - 3 -
             In order to establish a Sixth Amendment violation based

on counsel’s failure to appeal, Robeson must prove that (1) counsel

was ineffective and (2) but for counsel’s ineffectiveness, an

appeal would have been filed.       Roe v. Flores-Ortega, 528 U.S. 470,

476-77 (2000).    Counsel’s failure to file a notice of appeal when

requested to do so is per se ineffective assistance.                    United

States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993).                 In light of

Robeson’s claim, under penalty of perjury, that counsel denied her

request to file an appeal and counsel’s affidavit denying that

Robeson asked her to note an appeal, we find that there is a

genuine issue of material fact concerning whether Robeson was

denied effective assistance of counsel.

             Accordingly,   we   vacate    the   portion   of   the   district

court’s order implicitly denying relief on this claim and remand

for resolution of this issue.       The record will then be returned to

this court for further proceedings on the remaining issues pending

on appeal.

                                            VACATED IN PART AND REMANDED




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