                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 14-7298


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

MICHAEL SPEED,

                 Defendant - Appellant.



                             No. 15-7375


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

MICHAEL SPEED,

                 Defendant - Appellant.



Appeals from the United States District Court for the District
of Maryland, at Baltimore.   J. Frederick Motz, Senior District
Judge. (1:10-cr-00700-JFM-1; 1:14-cv-00583-JFM)


Submitted:   November 19, 2015             Decided:   January 12, 2016


Before NIEMEYER, KING, and KEENAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.


Michael Speed, Appellant Pro Se.    Benjamin M. Block, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       In these consolidated appeals, Michael Speed challenges the

district          court’s     orders        denying      relief       in     his      federal

postconviction           proceeding.          In      Appeal    No.        14-7298,    Speed

challenges         the   district     court’s      order    denying        his   28   U.S.C.

§ 2255 (2012) motion.                We initially remanded the case to the

district court with instructions that it rule on what should

have       been    construed    as    a    Fed.    R.    Civ.   P.    59(e)      motion    and

dispose       of    Speed’s    two        remaining      ineffective        assistance     of

counsel claims. 1           On remand, the district court denied Speed’s

Rule 59(e) motion, and the case has been returned to this court.

Speed’s appeal of the district court’s order denying his Rule

59(e) motion was docketed as Appeal No. 15-7375.

       On remand, the district court correctly docketed Speed’s

Rule   59(e)       motion     and    directed      the    Government       to    respond   to

       1
       In his § 2255 motion, Speed asserted a claim that counsel
provided ineffective assistance in failing to advise him of the
possibility of pleading guilty without a plea agreement to the
drug charge only, and failing to advise him of a potentially
meritorious defense to the firearm charge.      In his informal
briefs in these appeals, Speed does not assert error in the
district court’s rejection of these claims, and they are
therefore not preserved for review in this court.    4th Cir. R.
34(b) (“The Court will limit its review to the issues raised in
the informal brief.”).    In his amended § 2255 motion, Speed
claimed that counsel was ineffective in failing to timely file a
notice of appeal of his criminal judgment despite being asked to
do so (“appeal claim”), and in failing to investigate and
develop a mental competency argument as a mitigating factor for
sentencing. Those claims are preserved for appellate review.



                                               3
Speed’s    two     remaining   habeas       claims.         In   its    response,       the

Government opposed both of Speed’s remaining claims on their

merits,    but     conceded    that    the       appeal    claim   necessitated          an

evidentiary hearing.           Thus, the Government requested that an

evidentiary hearing be scheduled on this claim and that Speed be

appointed counsel for the hearing.

       Rather than schedule an evidentiary hearing on the appeal

claim,     however,      the   district          court    merely       denied    Speed’s

remaining § 2255 claims.          With regard to Speed’s appeal claim,

the district court stated:

       I will assume (if for no other reason than that the
       plea letter contained a paragraph waiving defendant’s
       right to appeal) that defendant was not advised by his
       counsel of the right to appeal.    This assumption may
       or may not be correct. However, making the assumption
       will save the government the cost of returning
       defendant to Baltimore and will save significant time
       and expense of the parties.

       An appeal may not be taken to this court from the final

order in a § 2255 proceeding unless a circuit justice or judge

issues      a      certificate        of        appealability.            28      U.S.C.

§ 2253(c)(1)(B) (2012).          A certificate of appealability will not

issue     absent    “a    substantial        showing       of    the    denial     of     a

constitutional       right.”      28       U.S.C.      § 2253(c)(2).            When    the

district court denies relief on the merits, a prisoner satisfies

this    standard    by   demonstrating          that     reasonable     jurists        would

find that the district court’s assessment of the constitutional


                                            4
claims is debatable or wrong.                Slack v. McDaniel, 529 U.S. 473,

484    (2000);   see     Miller-El      v.   Cockrell,      537     U.S.    322,     336-38

(2003).     When the district court denies relief on procedural

grounds, the prisoner must demonstrate both that the dispositive

procedural ruling is debatable, and that the motion states a

debatable claim of the denial of a constitutional right.                             Slack,

529 U.S. at 484-85.

       Under this standard, the movant must show that “reasonable

jurists could debate whether (or, for that matter, agree that)

the [motion] should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement

to    proceed    further.”           Miller-El,     537    U.S.     at    336   (internal

quotation       marks     omitted).          Thus,        “[t]he     [certificate       of

appealability]          determination        under        § 2253(c)        requires     an

overview of the claims in the habeas petition and a general

assessment of their merits.”                 Id.    In this regard, this court

must    “look     to     the    District         Court’s     application        of    [the

Antiterrorism and Effective Death Penalty Act of 1996] to [the

movant’s] constitutional claims and ask whether that resolution

was debatable amongst jurists of reason.”                     Id.        “This threshold

inquiry does not require full consideration of the factual or

legal bases adduced in support of the claims.                              In fact, the

statute forbids it.”           Id.



                                             5
      We conclude that reasonable jurists could debate whether

Speed’s appeal claim should have been resolved in a different

manner   and    that     the    issue     presented        is   adequate      to    deserve

encouragement to proceed further.                       First, it appears that the

district    court      misconstrued        Speed’s        claim.       Although       Speed

asserted    that    counsel       failed      to    timely      appeal   the       criminal

judgment against him despite being asked to do so, the district

court    characterized         the    claim        as    complaining     of     counsel’s

failure to advise Speed of his right to appeal.                            These claims

are not the same.

      And   although      the     district         court    suggests     that       counsel

committed no error because Speed’s plea agreement contained an

appellate      waiver,    this       is   incorrect.            The   Sixth    Amendment

obligates counsel to file a notice of appeal when a defendant

requests him to do so.               Strong v. Johnson, 495 F.3d 134, 138

(4th Cir. 2007).           Even a waiver of appellate rights in the

defendant’s plea agreement does not absolve counsel of his duty

to file a notice of appeal.                 United States v. Poindexter, 492

F.3d 263, 268-71 (4th Cir. 2007).                       Thus, counsel’s failure to

file a notice of appeal following a defendant’s unequivocal and

timely   request       constitutes        objectively       deficient      performance,

and   prejudices    the        defendant    because        it   deprives      him    of   an

appellate proceeding.           Id. at 268-69.



                                            6
       Moreover, we find that the district court’s language makes

it unclear whether the district court meant to grant or deny

Speed’s appeal claim.            First, although the district court’s most

recent order denies Speed’s § 2255 claims, the district court

appeared to assume counsel’s ineffectiveness so as to save the

parties the cost and time of an evidentiary hearing.                              If the

district court meant to grant Speed’s appeal claim, it failed to

grant Speed appropriate relief - namely, reentering the criminal

judgment against Speed to afford him an opportunity to file a

timely criminal appeal.             United States v. Peak, 992 F.2d 39, 42

(4th    Cir.    1993).       A     review    of   the   district    court’s       docket

confirms that the criminal judgment against Speed has not been

reentered so as to commence Speed’s criminal appeal period anew.

       On the other hand, if the district court truly meant to

deny Speed’s appeal claim, it appears (based on the record as it

currently      exists)      that    the   district      court    should    have    first

conducted an evidentiary hearing.                 See Raines v. United States,

423 F.2d 526, 529 (4th Cir. 1970) (“Unless it is clear from the

pleadings      and    the    files     and    records     that    the     prisoner    is

entitled to no relief, [§ 2255] makes a hearing mandatory.”);

cf. Poindexter, 492 F.3d at 267 (“Because the district court did

not    hold    an    evidentiary      hearing     to    resolve    the    question    of

whether [movant] unequivocally instructed his attorney to file a

timely notice of appeal, we must assume that [movant] did so

                                             7
instruct     for     purposes       of      resolving        his        appeal.”).        No

evidentiary hearing was conducted by the district court.

     In sum, we conclude that reasonable jurists would disagree

whether the district court correctly denied relief on Speed’s

appeal claim.      Moreover, and regardless of the district court’s

intended     disposition       on     Speed’s          ineffective        assistance      of

counsel    claims,     additional        action        by   the    district       court   is

necessary     before    this        court        may    consider        Speed’s    appeal.

Accordingly, we grant a certificate of appealability on Speed’s

appeal claim.        We vacate the district court’s August 12, 2015

order and remand to the district court with instructions that it

clarify its ruling pertaining to the appeal claim and conduct

any further proceedings it deems appropriate. 2                          In light of the

complicated procedural history of this case, the district court

should issue an opinion explaining its resolution of both of

Speed’s     remaining    claims:         that      counsel        was    ineffective      in

failing to timely file a notice of appeal and in failing to

investigate and develop a mental health argument for mitigation

at sentencing.       We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials




     2   We, of course, express no opinion as to the merits of this
claim.



                                             8
before   this   court   and   argument   would   not   aid   the   decisional

process.

                                                       VACATED AND REMANDED




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