UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 00-6302

TREMAINE LAMONT MURPHY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-98-71-S, CA-99-2073-HNM)

Submitted: July 27, 2000

Decided: August 14, 2000

Before WILLIAMS and MICHAEL, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

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Dismissed in part and vacated and remanded in part by unpublished
per curiam opinion.

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COUNSEL

Tremaine Lamont Murphy, Appellant Pro Se. John Francis Purcell,
Jr., OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Tremaine Lamont Murphy appeals the district court's order deny-
ing his 28 U.S.C.A. § 2255 (West Supp. 2000) motion. In this motion,
Murphy alleged that his attorney failed to file a requested notice of
appeal. He also requested that the district court reduce his sentence
on the basis of his post-conviction rehabilitation.

Addressing Murphy's first claim, the Government responded to his
motion by providing an affidavit from Murphy's defense attorney
averring that he discussed the issue of an appeal with Murphy and
that, after both advising him against noting an appeal and telling him
that the ultimate decision remained his to make, Murphy decided
against filing an appeal. A file memorandum drafted one day after the
expiration of the appeal period reflected these assertions. Murphy,
however, averred that he did, in fact, want to appeal his conviction
and that he specifically requested that his attorney do so.

Although recognizing that motions turning on only factual and
credibility issues cannot be resolved solely on the basis of affidavits,
but rather, in general, require an evidentiary hearing, the district court
found that because the attorney's affidavit was supported by a con-
temporaneous memo, the issue did not rely solely on the affidavits.
Hence, it concluded that an evidentiary hearing was not required and
resolved the factual dispute in favor of the Government.

Although an exception to the hearing requirement exists when the
record can be expanded with sufficient information such that the dis-
trict court can determine that the files and records of the case conclu-
sively show that the movant is not entitled to relief, this exception
exists only as to claims predicated on facts within the record. See
Sanders v. United States, 373 U.S. 1, 19 (1963) (overruled on other
grounds); see also Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir.

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1974) (applying Sanders). A defendant's request that his attorney file
an appeal is a matter extrinsic to the files and records of the case. We
therefore find that this exception does not apply to Murphy's case.

Accordingly, because an attorney's failure to note a requested
appeal constitutes a Sixth Amendment violation, Murphy has made a
substantial showing of the denial of a constitutional right. See United
States v. Peak, 992 F.2d 39, 41-42 (4th Cir. 1993). A certificate of
appealability may thus issue. See 28 U.S.C.A. § 2253 (West 2000);
Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000). We therefore
grant a certificate of appealability as to this claim, vacate the district
court's order, and remand this claim back to the district court for fur-
ther proceedings.

Addressing Murphy's request for a sentence reduction based upon
his post-conviction rehabilitation, we note that the district court has
no authority to modify a sentence on this basis. See 18 U.S.C.A.
§ 3582(c) (West 1985 & Supp. 1999); Fed. R. Crim. P. 35. Accord-
ingly, we deny a certificate of appealability and dismiss this claim.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

DISMISSED IN PART; VACATED AND
REMANDED IN PART

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