                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-7601


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

MICHAEL GLOVER,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.      Terrence W. Boyle,
District Judge. (7:07-cr-00023-BO-5; 7:09-cv-00078-BO)


Submitted:    January 14, 2010              Decided:   February 2, 2010


Before MOTZ and      KING,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed in part as modified, vacated in part, and remanded with
instructions by unpublished per curiam opinion.


Michael Glover, Appellant Pro Se.      Barbara Dickerson Kocher,
Rudolf A. Renfer, Jr., Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           In 2008, Michael Glover pled guilty, pursuant to a

plea agreement, to one count of conspiracy to distribute and

possess with the intent to distribute five kilograms or more of

cocaine, fifty grams or more of cocaine base, and one hundred

kilograms or more of marijuana, in violation of 21 U.S.C. § 846

(2006).    Glover was sentenced to 292 months’ imprisonment.         No

direct appeal was noted from Glover’s conviction or sentence.

           In a 28 U.S.C.A. § 2255 (West Supp. 2009) motion filed

in the district court, Glover asserted, among other claims, that

his trial counsel was ineffective for failing to file a notice

of appeal as Glover had requested.      In its order and judgment

adjudicating Glover’s § 2255 motion, the district court granted

Glover relief on that claim by granting leave to file a belated

criminal   appeal.   Simultaneously,   however,   the   court   granted

summary judgment to the Government on Glover’s remaining § 2255

claims for relief.   Glover timely appealed the district court’s

order and judgment adjudicating his § 2255 motion.

           An attorney who fails to file a direct appeal when

requested to do so by his criminal defendant client “deprives

the defendant of his Sixth Amendment right to the assistance of

counsel, notwithstanding that the lost appeal may not have had a

reasonable probability of success.”     United States v. Peak, 992

F.2d 39, 42 (4th Cir. 1993).     Counsel is not absolved of his

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duty to file a requested notice of appeal by a waiver of appeal

rights in a plea agreement.                   United States v. Poindexter, 492

F.3d       263,    271-73    (4th   Cir.    2007).        In     this   Circuit,     as   in

others,       the    remedy    on     § 2255       for   ineffective      assistance      of

counsel where counsel fails to note a requested appeal is to

vacate the underlying judgment of conviction and reenter the

judgment to permit the appeal period under Fed. R. App. P. 4(b)

to run anew.         See Peak, 992 F.2d at 42. *

                  We initially note that despite the district court’s

conclusion that Glover’s counsel failed to file a direct appeal

as requested, Glover’s judgment of conviction was not vacated

and reentered.              Furthermore, while the district court denied

relief as to the remainder of Glover’s § 2255 claims, we note

that       those     claims    could       otherwise       be    raised       in   Glover’s

reinstated direct appeal.                When a prisoner such as Glover has

wrongly been denied the right to a direct appeal as the result

of counsel’s ineffective assistance, he should not be forced to

raise all possible claims against his judgment of conviction in

his    first       § 2255    motion    and,    thereby,         “make   the    substantive


       *
        See United States v. Shedrick, 493 F.3d 292, 303
(3d Cir. 2007); United States v. Snitz, 342 F.3d 1154, 1159
(10th Cir. 2003); United States v. West, 240 F.3d 456, 459
(5th Cir. 2001); United States v. Torres-Otero, 232 F.3d 24, 29
(1st Cir. 2000); United States v. Phillips, 225 F.3d 1198, 1200-
01 (11th Cir. 2000).



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objections to his conviction and sentence that his lawyer would

have made for him on direct appeal.”                In re Goddard, 170 F.3d

435, 437 (4th Cir. 1999).

              To place Glover in the position he would have been in

if he had had the effective assistance of counsel, we grant

Glover a certificate of appealability and vacate that portion of

the district court’s order and judgment granting Glover leave to

file a belated notice of appeal.              We remand with instructions to

vacate   and    reenter      Glover’s    judgment   of    conviction.        In   so

doing, the district court should appoint counsel to represent

Glover so that Glover may benefit both from counsel’s advice as

to whether to pursue a direct appeal and from counsel’s services

in filing a timely notice of appeal, should that be Glover’s

decision   to    do   so.      We   further    modify    the   district    court’s

denial   of    relief   on    Glover’s    remaining      § 2255   claims     to   be

without prejudice and affirm the denial of relief as modified.

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.



                                               AFFIRMED IN PART AS MODIFIED,
                                                        VACATED IN PART, AND
                                                  REMANDED WITH INSTRUCTIONS




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