United States v. Jackson

55 F. App'x 666

Opinion

OPINION

PER CURIAM.

Raymond Leroy Jackson appeals from the dismissal of his 28 U.S.C.A. § 2255 (West Supp.2001) motion, attacking his conviction and sentence for violating 18 U.S.C. § 1512(a)(1) (1994). We vacate and remand for further proceedings.

Jackson’s claim that his counsel was ineffective for failing to file a notice of appeal following his sentencing was rejected by the district court upon a finding that Jackson failed to show prejudice. This finding was erroneous, however, under this court’s decision in United States v. Peak, 992 F.2d 39, 42 (4th Cir.1993). In Peak, we held that counsel’s failure to pursue an appeal requested by a defendant constitutes ineffective assistance of counsel regardless of the likelihood of success on the merits. Id. Thus, if counsel promises to note an appeal and then fails to do so, petitioner is entitled to relief in the form of a belated appeal. Id.; see also Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).

Accordingly, we grant a certificate of appealability and vacate the district court’s order and remand for compliance with this opinion and Peak. We decline to address any other claims on appeal. 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.