                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-7766



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


LUTHER MOORE,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CR-03-399; CA-04-1233-1)


Submitted:   September 29, 2006           Decided:   October 26, 2006


Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.


Vacated in part, dismissed in part, and remanded by unpublished per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


Luther Moore, Appellant Pro Se. Mark Alex Grider, Jill M. Cassara,
Randall Conner, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Luther Moore seeks to appeal the district court’s order

denying relief on his 28 U.S.C. § 2255 (2000) motion.     Deferring

action on the remainder of the appeal, we granted a certificate of

appealability on a single claim of ineffective assistance of

counsel in which Moore alleged that he was denied the right to a

direct appeal when counsel failed to comply with his 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 denied

relief on this claim and remand for further proceedings on this

issue.

          Moore pled guilty to conspiracy to distribute cocaine

base, and was sentenced to eighty-seven months’ imprisonment.    He

did not appeal.   In his § 2255 motion, which was sworn and verified

in compliance with 28 U.S.C. § 1746 (2000), Moore claimed that he

requested his counsel to file a notice of appeal at the conclusion

of his sentencing hearing.   Moore’s counsel, however, stated in an

affidavit that Moore did not request an appeal until approximately

nine months after sentencing.

          “Unless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief, the

court shall . . . grant a prompt hearing thereon, determine the

issues and make findings of fact and conclusions of law with

respect thereto.”    28 U.S.C. § 2255.    When a movant presents a


                                - 2 -
colorable Sixth Amendment claim showing disputed facts beyond the

record and a credibility determination is necessary to resolve the

issue, an evidentiary hearing in open court is required.                   See

United States v. Witherspoon, 231 F.3d 923, 925-27 (4th Cir. 2000).

An attorney’s failure to file a requested notice of appeal is per

se ineffective assistance of counsel.          See Roe v. Flores-Ortega,

528 U.S. 470, 476-77 (2000); United States v. Peak, 992 F.2d 39, 42

(4th Cir. 1993).         In light of Moore’s claim, under penalty of

perjury, that counsel failed to honor his request to file an

appeal, and counsel’s conflicting affidavit denying that Moore

timely asked him to note an appeal, we find that there is a genuine

issue    of   material    fact   concerning   whether   Moore   was    denied

effective assistance of counsel.

              Accordingly, we vacate that portion of the district

court’s order denying relief on this claim and remand for further

proceedings as to this issue.*        After independently reviewing the

record on Moore’s remaining claims, we conclude Moore has not made

the requisite showing and consequently deny a certificate of

appealability and dismiss the appeal as to those claims.




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

                                    - 3 -
          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.



                                                 VACATED IN PART,
                                               DISMISSED IN PART,
                                                     AND REMANDED




                              - 4 -
