                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-7492


MICHAEL KEITH LAMBERT,

                Petitioner - Appellant,

          v.

GENE   M.   JOHNSON,     Director,   Virginia   Department   of
Corrections,

                Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:06-cv-00631-RBS)


Submitted:   November 3, 2009               Decided:   July 6, 2010


Before MOTZ and SHEDD, Circuit Judges, and Jane R. ROTH, Senior
Circuit Judge of the United States Court of Appeals for the
Third Circuit, sitting by designation.


Vacated and remanded by unpublished opinion. Senior Judge Roth
wrote the opinion, in which Judge Motz and Judge Shedd joined.


Nathan S. Mammen, Charles A. Fernández, KIRKLAND & ELLIS, LLP,
Washington, D.C., for Appellant.    William C. Mims, Attorney
General, Josephine F. Whalen, Assistant Attorney General II,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
ROTH, Senior Circuit Judge:

        Michael Lambert appeals the District Court=s order denying

his petition for writ of habeas corpus under 28 U.S.C. ' 2254.

Lambert seeks habeas relief that would allow him to appeal in

state court his conviction for second-degree murder.

        Because we write primarily for the parties, we only briefly

recite    the    facts.       Lambert     pleaded   guilty     to    second-degree

murder in state court for the death of his wife.                    Lambert=s brief

consultation with counsel regarding his Alford plea occurred in

open    court.      After     conducting      a   short   colloquy,       the   court

accepted Lambert=s plea.           At sentencing, the prosecutor proffered

victim impact statements and argued for an upward departure from

the state sentencing guidelines even though the plea agreement

provided that the state would not recommend a sentence.                            The

court    accepted      the    prosecutor=s    recommendation        and    sentenced

Lambert     to    43      years=    imprisonment.          Lambert         expressed

dissatisfaction with this result, but his counsel never advised

him of the right to appeal.               Lambert exhausted post-conviction

remedies under state law and filed this habeas petition claiming

ineffective assistance of counsel.

        Our review is plenary as to the District Court=s decision,

Robinson    v.    Polk,      438   F.3d   350,    354   (4th   Cir.       2006),   but

deferential as to state court determinations.                   Under the Anti-

Terrorism and Effective Death Penalty Act of 1996, Lambert is

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not entitled to habeas relief Awith respect to any claim that was

adjudicated on the merits in state court proceedings unless the

adjudication of the claim . . . resulted in a decision that was

contrary to, or involved an unreasonable application of clearly

established Federal law, as determined by, the Supreme Court of

the United States.@       28 U.S.C. ' 2254(d).

     Claims of ineffective assistance of counsel are reviewed

under    the   two-part    test    of    Strickland      v.    Washington,     which

examines whether assistance was ineffective and, if so, whether

it prejudiced the defendant. 466 U.S. 668 (1984).                        Failure to

counsel    a     defendant    of     appellate      rights       can     constitute

prejudicially      ineffective       assistance.              A[C]ounsel     has   a

constitutionally-imposed          duty   to    consult    with     the     defendant

about an appeal when there is reason to think either (1) that a

rational defendant would want to appeal (for example, because

there are nonfrivolous grounds for appeal), or (2) that this

particular defendant reasonably demonstrated to counsel that he

was interested in appealing.@                Roe v. Flores-Ortega, 528 U.S.

470, 480 (2000).          AFor an attorney to >consult,= that attorney

must advise the client about the advantages and disadvantages of

an appeal and make reasonable efforts to ascertain the client=s

wishes.@       Bostick v. Stevenson, 589 F.3d 160, 166 (4th Cir.

2009).



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       In   this       case,   trial    counsel          admits      he   did     not    advise

Lambert     of    his    right   to    appeal.           Had    Lambert       known      of   his

appellate        rights,    he   could    have          asserted      three      nonfrivolous

arguments        challenging     his   conviction             and    sentence:          (1)   the

validity     of    his     guilty     plea,       (2)    the    Commonwealth=s          alleged

breach of the plea agreement, and (3) the trial court=s admission

of victim impact statements in violation of state law.                                  Lambert

reasonably        demonstrated        interest          in    pursuing      an    appeal       by

expressing        dissatisfaction        shortly             after    the     sentence        was

imposed.     See Frazer v. South Carolina, 430 F.3d 696, 712 (4th

Cir.   2005)      (noting      that    interest          in    appeal     demonstrated         by

expression        of    dissatisfaction).               The    state      court=s     contrary

determinations are unreasonable applications of federal law; the

District Court erred by denying the writ.

       The order of the District Court will be VACATED and the

case REMANDED.           On remand, the District Court shall grant the

writ of habeas corpus allowing Lambert to pursue his appeal in

state court.

                                                                     VACATED AND REMANDED




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