                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 05-6592



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


CHARLES MICHAEL COON, JR.,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Graham C. Mullen,
District Judge. (CR-03-148; CA-05-121-3)


Submitted:   August 30, 2006             Decided:   November 14, 2006


Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Charles Michael Coon, Jr., Appellant Pro Se. Amy Elizabeth Ray,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Charles Michael Coon, Jr., appeals the district court’s

order summarily dismissing a 28 U.S.C. § 2255 (2000) motion to

vacate   his   2003   convictions    on     various   drug   offenses.   We

previously granted a certificate of appealability on Coon’s claim

that his attorney failed to appeal these criminal convictions

despite Coon’s request that he do so.*                For the reasons that

follow, we vacate the district court’s order summarily denying

relief on this claim, and remand for further proceedings.

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

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

court shall cause notice thereof to be served upon the United

States attorney, 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.      A hearing is required when a

movant presents a colorable Sixth Amendment claim showing disputed

material facts and a credibility determination is necessary to

resolve the issue. See United States v. Witherspoon, 231 F.3d 923,

925-27 (4th Cir. 2000); Roe v. Flores-Ortega, 528 U.S. 470, 476-77

(2000); United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993).

           In its informal brief to this court, the Government

concedes that “the record before the district court raised a


     *
      In the same order, we denied a certificate of appealability
and dismissed Coon’s appeal with respect to his other claim of
ineffective assistance of counsel.

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genuine issue of material fact as to whether trial counsel’s

performance was per se ineffective under Peak.             Accordingly, the

district court’s summary dismissal of this claim without seeking an

affidavit from trial counsel or resolving the dispute was in

error.”     We agree.     In light of Coon’s claim, under penalty of

perjury,    that   counsel   failed   to    file   an   appeal   after   being

requested to do so, we find that the district court erred in

summarily    dismissing    this   claim    of   ineffective   assistance    of

counsel.    Accordingly, we grant the Government’s motion for leave

to file its brief out of time, vacate the decision of the district

court, and remand the case for further proceedings.              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 AND REMANDED




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