United States v. Michael ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-6601
GEORGE WILLIAM MICHAEL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CR-91-68-JFM, CA-95-3458-JFM)
Submitted: November 26, 1996
Decided: January 15, 1997
Before MURNAGHAN, WILKINS, and WILLIAMS,
Circuit Judges.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
George William Michael, Appellant Pro Se. William Warren Hamel,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant appeals the district court's order denying relief on his
motion brought under 28 U.S.C. § 2255 (1994), amended by Antiter-
rorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
110 Stat. 1214. We vacate and remand.
Appellant pled guilty in federal court to bank robbery and use of
a firearm in a crime of violence. Neither his plea agreement nor the
transcripts of his plea hearing reveal any waiver of his right to bring
an appeal from either his conviction or his sentence. In his § 2255
motion brought before the district court, Appellant alleges that he
requested his attorney to note an appeal from his sentence, but that his
attorney never did so. The Government counters this allegation only
by stating that it was the attorney's habit to note requested appeals
and that even if the attorney failed to note a requested appeal, Appel-
lant had no meritorious claims to present on appeal.
"Unless [a § 2255] 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."
§ 2255. We find that the Government's response, standing alone, is
insufficient to "conclusively show" that Appellant was not entitled to
relief. The assertion of the attorney's habit, as used to controvert
Appellant's assertion, only serves to illuminate a factual dispute of
constitutional import. The assertion that Appellant had no bases from
which to launch an appeal is likewise insufficient to establish the con-
clusiveness required to dismiss a § 2255 motion prior to a hearing, for
failure to perfect a requested appeal of right constitutes ineffective
assistance even if the lost appeal had no reasonable probability of suc-
cess. United States v. Peak, 992 F.2d 39, 41-42 (4th Cir. 1993); see
also Becton v. Barnett, 920 F.2d 1190, 1195 (4th Cir. 1990).
Accordingly, we find that the district court's dismissal of Appel-
lant's § 2255 motion prior to a hearing was improper. We therefore
vacate the district court's order and remand Appellant's motion for
further consideration. We also deny Appellant's motion for default
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judgment under Fed. R. Civ. P. 55 as meritless. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the Court and argument would not aid
the decisional process.
VACATED AND REMANDED
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