UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-7349

STEVE ALSTON,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, District Judge.

(CR-93-144-BO, CA-95-437-5-BO)

Submitted: March 26, 1996

Decided: June 28, 1996

Before HALL, ERVIN, and MOTZ, Circuit Judges.

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Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

Steve Alston, Appellant Pro Se. David Paul Folmar, Jr., Assistant

United States Attorney, Raleigh, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

The Appellant, Steve Alston, appeals the district court's denial of

his 28 U.S.C. § 2255 (1988) motion to vacate, set aside, or correct his

sentence. Alston claims that the Government breached the plea agreement, that his presentence report contained errors, and that his counsel

failed to note an appeal and object to the presentence report as

instructed. Finding that Alston makes a colorable claim of ineffective

assistance of counsel,1 we vacate and remand in part.

Pursuant to a plea agreement, Alston pled guilty to using a communication facility to facilitate drug trafficking, 2 and the district court

sentenced Alston to sixty months incarceration with three years of

supervised release. In his plea agreement, Alston waived his right to

appeal his conviction or sentence,3 but reserved the right to appeal for

ineffective assistance of counsel or prosecutorial misconduct not

known to him at the time of his guilty plea. In his§ 2255 motion, Alston never contends that the plea agreement or the waiver of appellate

rights was unknowing or involuntary; consequently, Alston's plea

agreement, including the waiver provision, are upheld as an intelligent and informed decision.4

Although Alston partially waived his appellate rights, he claims in

his § 2255 motion that counsel was ineffective because counsel failed

to note an appeal after he was allegedly so instructed by Alston.

While "a collateral challenge may not do service for an appeal,"5 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 probabil-

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1 Becton v. Barrnett, 920 F.2d 1190, 1195 (4th Cir. 1990).

2 18 U.S.C. § 1952 (1988).

3 United States v. Wiggins, 905 F.2d 51 (4th Cir. 1990).

4 North Carolina v. Alford, 400 U.S. 25, 31 (1970); Boykin v. Alabama,

395 U.S. 238, 242 (1969).

5 United States v. Frady, 456 U.S. 152, 165 (1982).

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ity of success."6 We find Peak dispositive because Alston did not

waive all of his appellate rights.7 Alston reserved his right to appeal

based upon ineffective assistance of counsel and prosecutorial misconduct, and he could have challenged whether the waiver of rights

provision was enforceable. Further, while the likelihood that Alston

could meet the burden of proving ineffective assistance or prosecutorial misconduct is small, Peak eliminates the need for Alston to

show actual prejudice.8 If counsel failed to note an appeal as alleged,

then Alston was completely deprived of assistance of counsel on

direct appeal and relief is warranted.

Finally, Alston's remaining claims are without merit. Alston's

assertion that the Government breached the plea agreement because

he did not receive a three-point reduction in his base offense level for

acceptance of responsibility is without merit.9 Alston did in fact

receive a three-point reduction. Likewise, Alston's claim of errors in

his presentence report is without merit. Alston was aware of the

alleged errors at sentencing, but he failed to object. Consequently,

Alston's waiver of appellate rights in his plea agreement bars him

from raising this claim.

Accordingly, we affirm the district court on Alston's claims that

there was a breach of the plea agreement and that there were errors

in his presentence report, but because Alston's claim that he requested

his attorney to note an appeal was not directly refuted by his attorney,

nor did the district court determine whether Alston had in fact

requested his attorney to note an appeal, we remand this claim for

appropriate findings. If Alston did in fact request counsel to note an

appeal, he should be allowed to file one as Peak dictates. We dispense

with oral argument because the facts and legal contentions are

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6 United States v. Peak, 992 F.2d 39, 41-42 (4th Cir. 1993).

7 Cf. United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (attorney

cannot be deficient for failing to raise claims when defendant knowingly

and voluntarily waived all appellate and post-conviction relief).

8 Peak, 992 F.2d at 42.

9 United States Sentencing Commission, Guidelines Manual,

§ 3E1.1(b) (Nov. 1993).

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adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED 

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