United States v. Murphy , 1 F. App'x 111 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-7104
CHARLES GILBERT MURPHY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-99-33, CA-00-497)
Submitted: December 8, 2000
Decided: January 4, 2001
Before WIDENER, MICHAEL, and KING, Circuit Judges.
Dismissed in part and vacated and remanded in part by unpublished
per curiam opinion.
COUNSEL
Charles Gilbert Murphy, Appellant Pro Se. Scott L. Wilkinson,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MURPHY
OPINION
PER CURIAM:
Charles Gilbert Murphy appeals the district court order dismissing
his 28 U.S.C.A. § 2255 (West Supp. 2000) motion. The district court
summarily dismissed Murphy’s motion pursuant to Rule 4(b) of the
Rules Governing Section 2255 Proceedings for the United States Dis-
trict Courts, 28 U.S.C.A. § 2255. We deny a certificate of appeala-
bility and dismiss the appeal as to all of Murphy’s claims excepting
one. As to Murphy’s claim that he was denied effective assistance of
counsel because counsel failed to file a notice of appeal despite being
requested to do so, we grant a certificate of appealability and vacate
the court’s order as to that claim and remand for further proceedings.
The district court determined that because Murphy waived his right
to appeal his sentences and convictions except for claims regarding
ineffective assistance of counsel and prosecutorial misconduct not
known at the time he pled guilty, Murphy was not prejudiced by
counsel’s failure to note an appeal because an appeal would have
been futile. Counsel’s failure to note a requested appeal is presump-
tively prejudicial, however. See Roe v. Flores-Ortega, 120 S. Ct.
1029, 1038-39 (2000); United States v. Witherspoon, 2000 WL
1663362 *2 (4th Cir. Nov. 6, 2000) ("[a]n attorney who fails to file
an appeal after being instructed by his client to do so is per se ineffec-
tive"); United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993). In Roe,
the Supreme Court found that when counsel’s conduct renders the
appellate proceeding non-existent, prejudice is presumed and the
defendant is not required to show that the appellate proceeding would
have presented meritorious claims. See id. Thus to prevail on an inef-
fective assistance of counsel claim for failing to note an appeal, a
defendant need not "demonstrate that his hypothetical appeal might
have had merit," but rather only that "but for counsel’s deficient con-
duct, he would have appealed." Roe, 120 S. Ct. at 1040.
Accordingly, we grant a certificate of appealability in regard to
Murphy’s claim that he was denied effective assistance of counsel
because counsel failed to file a requested notice of appeal.1 We vacate
1
We express no opinion as to the merits of this claim.
UNITED STATES v. MURPHY 3
the court’s order as to this claim and remand for further proceedings.
As for Murphy’s remaining claims, we deny a certificate of appeala-
bility and dismiss the appeal on the reasoning of the district court. See
United States v. Murphy, Nos. CR-99-33; CA-00-497 (E.D.N.C. July
27, 2000).2 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 in the decisional process.
DISMISSED IN PART;
VACATED AND REMANDED IN PART
2
Although the district court’s order is marked as "filed" on July 26,
2000, the district court’s records show that it was entered on the docket
sheet on July 27, 2000. Pursuant to Rules 58 and 79(a) of the Federal
Rules of Civil Procedure, it is the date that the order was entered on the
docket sheet that we take as the effective date of the district court’s deci-
sion. See Wilson v. Murray, 806 F.2d 1232, 1234-35 (4th Cir. 1986).