UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-6490

LUIS FERRIN,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, Chief District Judge.

(CR-92-282-JFM, CA-95-3609-JFM)

Submitted: November 26, 1996

Decided: December 23, 1996

Before HALL, LUTTIG, and MICHAEL, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Luis Ferrin, Appellant Pro Se. John Francis Purcell, Jr., 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Unpublished opinions are not binding precedent in this circuit.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:

Luis Ferrin appeals the district court's order denying relief on his

motion brought under 28 U.S.C. § 2255 (1994), amended by Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,

110 Stat. 1214. We vacate and remand.

Appellant pled guilty in federal court to conspiracy to import

cocaine into the United States. Neither his plea agreement nor the

transcripts of his plea hearing reveal any waiver of his right to bring

an appeal from either his conviction or his sentence. In his § 2255

motion Appellant alleged in a verified affidavit that he timely

requested his attorney to note an appeal from his sentence, but that his

attorney never did so. The Government counters this allegation with

a verified affidavit from the attorney stating that Appellant never

asked him to note an appeal. The Government also argues that even

if the attorney failed to note a requested appeal, Appellant had no

meritorious claims to present.

"Unless [a § 2255] motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief, the court

shall . . . grant a prompt hearing thereon, determine the issues and

make findings of fact and conclusions of law with respect thereto."

§ 2255. We find that the Government's response, standing alone, is

insufficient to "conclusively show" that Appellant was not entitled to

relief. The conflicting affidavits serve only to illuminate a factual dispute of constitutional import. The assertion that Appellant had no

bases from which to launch an appeal is likewise insufficient to establish the conclusiveness required to dismiss a § 2255 motion prior to

a hearing, for failure to perfect a requested appeal of right constitutes

ineffective assistance even if the lost appeal had no reasonable probability of success. See United States v. Peak, 992 F.2d 39, 41-42 (4th

Cir. 1993); see also Becton v. Barnett, 920 F.2d 1190, 1195 (4th Cir.

1990).

Accordingly, we find that the district court's dismissal of Appellant's § 2255 motion was improper. We therefore vacate the district

court's order and remand Appellant's motion for further consider-

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ation. 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

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