US v. Robertson

Filing 920060830

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-7315

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DARRYLE EDWARD ROBERTSON, a/k/a Tiger, Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR01-304-JFM; CA-04-1213-JFM)

Submitted:

August 9, 2006

Decided:

August 30, 2006

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

Vacated in part and remanded by unpublished per curiam opinion.

Darryle Edward Robertson, Appellant Pro Se. Stephen Matthew Schenning, 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Unpublished opinions are not binding precedent in this circuit.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).

PER CURIAM: Darryle Edward Robertson seeks to appeal the district court's order denying relief on his motion filed under 28 U.S.C. § 2255 (2000). Dismissing all other claims, this court granted a

certificate of appealability on a single claim of ineffective assistance of counsel in which Robertson 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. Robertson pled guilty to conspiracy to distribute a variety of drugs in violation of 21 U.S.C. § 846 (2000). The

district court adopted the plea agreement's recommendation and sentenced him to 360 months' imprisonment. appeal. Robertson did not

In his § 2255 motion, signed under penalty of perjury,

Robertson claims that he told his attorney that he wished to appeal but that counsel failed to comply with his request. Counsel stated under oath that he has no recollection of Robertson's request. In order to establish a Sixth Amendment violation based on (1) counsel's counsel failure was an to appeal, and Robertson (2) must for filed. prove that

ineffective appeal

but

counsel's Roe v.

ineffectiveness,

would

have

been

Flores-Ortega, 528 U.S. 470, 476-77 (2000).

Counsel's failure to

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file

a notice

of

appeal

when

requested

to

do

so

is

per

se

ineffective assistance. (4th Cir. 1993).

United States v. Peak, 992 F.2d 39, 42

In light of Robertson's claim, under penalty of

perjury, that counsel denied his request to file an appeal, coupled with counsel's lack of memory, there is a genuine issue of material fact concerning whether Robertson was denied effective assistance of counsel. Accordingly, we vacate the portion of the district

court's order denying relief on this claim and remand for the limited purpose of permitting the district court to conduct further proceedings to resolve this issue. will then be returned to this court. appoint counsel. The record, as supplemented, We deny Robertson's motion to

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 AND REMANDED

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