UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-7562

BERKLEY S. POLLARD, a/k/a Tojo,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, Chief District Judge.

(CR-96-210-JFM, CA-97-2065-JFM)

Submitted: March 24, 1998

Decided: April 7, 1998

Before MURNAGHAN, NIEMEYER, and WILLIAMS,

Circuit Judges.

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Dismissed in part and vacated and remanded in part by unpublished

per curiam opinion.

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COUNSEL

Berkley S. Pollard, Appellant Pro Se. Christine Manuelian, 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Unpublished opinions are not binding precedent in this circuit.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).

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OPINION

PER CURIAM:

Berkley Pollard appeals the district court's denial of his motion

under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997). Pollard

claimed that: (1) he was wrongfully given a three-point upward

adjustment of his offense level under the Sentencing Guidelines for

having been a leader and organizer in the conspiracy of which he was

a member; (2) there was insufficient information before the district

court for him to be sentenced under the guidelines range pertaining

to crack cocaine; (3) his counsel was ineffective in not objecting to

the three-point adjustment for leadership; (4) his counsel was ineffective in not objecting to the use of the Sentencing Guidelines for

cocaine base; and (5) his attorney failed to file an appeal as he

directed the attorney to do. Finding that Pollard makes a colorable

claim of ineffective assistance of counsel for failure to file an appeal,*

we grant a certificate of probable cause to appeal as to that claim, dismiss in part, and vacate and remand in part.

Pursuant to a plea agreement, Pollard pled guilty to two separate

acts of distribution of cocaine base in violation of 18 U.S.C. § 841(a)

(1994). The district court sentenced him to 165 months incarceration

on each charge, to run concurrently, five years of supervised release,

and the mandatory $50 special assessment. In his plea agreement, Pollard expressly waived his right to appeal his sentence, including any

issues that relate to the establishment of the guidelines range, reserving only the right to appeal from an upward or downward departure

from the guidelines range established at sentencing. Pollard did not

waive his right to appeal his conviction, or an appeal based on ineffective assistance of counsel, prosecutorial misconduct, or involuntariness of his guilty plea, except under limited circumstances.

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*See Becton v. Barnett, 920 F.2d 1190, 1195 (4th Cir. 1990).

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To the extent these claims survive Pollard's waiver of his appeal

rights, we agree with the district court that the sentencing claims Pollard raises are without merit. Pollard voluntarily agreed in his plea

agreement and in his Fed. R. Crim. P. 11 colloquy that he was a

leader in an extensive drug trafficking scheme. The district court was

entitled to rely upon these admissions in imposing sentence. See

Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); Via v. Superintendent, Powhatan Correctional Ctr., 643 F.2d 167, 171 (4th Cir. 1981).

Further, the statement of facts revealed that Pollard held a position of

some responsibility in the organization based upon his instruction to

an undercover officer that the officer should continue to contact Pollard's co-conspirator for future drug purchases, and to call Pollard's

pager only if the co-conspirator did not respond. Pollard also admitted

both in the plea agreement and in the Rule 11 colloquy that the drug

involved was crack cocaine. Thus, Pollard is barred from contending

by way of a § 2255 motion that some drug other than crack was

involved. See id. Moreover, because there was no error, Pollard cannot establish ineffective assistance of counsel relative to counsel's

failure to object to either the three-point adjustment for leadership or

the use of the guidelines for cocaine base. See Hill v. Lockhart, 474

U.S. 52, 58-59 (1985); Ostrander v. Green, 46 F.3d 347, 352 (4th Cir.

1995); See also Strickland v. Washington, 466 U.S. 668, 687-88, 694

(1984).

Pollard claimed in his § 2255 motion that counsel was ineffective

because she failed to note a direct appeal after she was allegedly so

instructed by Pollard. Pollard's counsel submitted an affidavit stating

that Pollard made no such request. Finding that Pollard failed to present any issue that fell outside the scope of his waiver or which would

have entitled him to prevail on appeal, the district court found that an

evidentiary hearing was unnecessary, and dismissed Pollard's § 2255

motion.

This court has said "that a criminal defense attorney's failure to file

a notice of appeal when requested by his client deprives the defendant

of his Sixth Amendment right to the assistance of counsel, notwithstanding that the lost appeal may not have had a reasonable probability of success." United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993).

We find Peak dispositive because Pollard did not waive all of his

appellate rights. Cf. United States v. Wilkes , 20 F.3d 651, 653 (5th

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Cir. 1994) (attorney cannot be deficient for failing to raise claims

when defendant knowingly and voluntarily waived all appellate and

post-conviction relief). While the likelihood that Pollard could meet

the burden of proving any of the issues which arise from the rights

he did not waive is small, Peak eliminates the need for Pollard to

show actual prejudice. See Peak, 992 F.2d at 42. If counsel failed to

note an appeal as alleged, then Pollard was completely deprived of

assistance of counsel on direct appeal and relief is warranted.

The district court's factual finding that Pollard failed to demonstrate any meritorious issues for appeal was not a proper basis for

denying relief on the claim that counsel failed to perfect the appeal.

The evidence at this juncture in the case reveals a conflict of constitutional import between Pollard and his counsel as to whether Pollard

asked his attorney to file a direct appeal on his behalf. In light of this

conflict, we conclude that Pollard is entitled to a remand for an evidentiary hearing and appropriate factual findings by the district court

on this claim.

In conclusion, we deny a certificate of probable cause to appeal all

claims other than Pollard's claim of ineffective assistance of counsel

for failure to file an appeal, and dismiss those claims. We grant a certificate of probable cause to appeal the limited claim of ineffective

assistance of counsel based on counsel's alleged failure to file an

appeal, vacate in part as to that claim, and remand that claim to the

district court for further consideration. 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.

DISMISSED IN PART AND

VACATED AND REMANDED IN PART

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