UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-6093

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES DARRELL DALTON,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Anderson. G. Ross Anderson, Jr., District

Judge. (CR-02-236; CA-03-1411-6)

Submitted: April 27, 2005 Decided: May 17, 2005

Before MICHAEL, KING, and SHEDD, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

James Darrell Dalton, Appellant Pro Se. Kevin Frank McDonald,

OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

James Darrell Dalton appeals the district court’s orders

denying relief on his motion filed pursuant to 28 U.S.C. § 2255

(2000) and denying his motion for reconsideration. In the § 2255

motion, Dalton raised several claims, notably that counsel was

ineffective for failing to file a notice of appeal from his

conviction under 18 U.S.C. § 2252A(a)(5)(B) (2000). We previously

entered an order granting Dalton a certificate of appealability on

this issue. In the same order, we denied a certificate of

appealability and dismissed Dalton’s appeal with respect to all

other claims. For the reasons that follow, we vacate the district

court’s order insofar as it denied relief on the notice of appeal

issue and remand for an evidentiary hearing.

In his motion, Dalton contended that he asked his

attorney, Richard Warder, to file a notice of appeal, but Warder

refused. Warder filed an affidavit with the district court stating

that, following Dalton’s guilty plea, Dalton began collecting

evidence that might support a Fed. R. Crim. P. 35(b) motion for

reduction of sentence. Dalton spoke with Warder and others in

Warder’s office, as well as with an Assistant United States

Attorney, about working with the Government in an effort to reduce

his sentence. Warder stated that Dalton was aware that no

meritorious grounds for appeal existed and that pursuing a Rule

35(b) motion likely would better serve him.
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Dalton responded with a sworn declaration insisting that

he informed Warder immediately after sentencing that he wished to

appeal. Warder, however, refused to file an appeal because there

were no grounds for appeal.

The district court found that Dalton’s claim was

unsupported by any evidence and contrary to the evidence of record,

including Warder’s affidavit and the affidavit of an FBI agent that

corroborated Warder’s version of events. Thus, the court made a

credibility determination against Dalton.

“Unless the 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.” 28 U.S.C. § 2255. A hearing is required if a

credibility determination is necessary in order to resolve an issue

in a § 2255 motion. United States v. Witherspoon, 231 F.3d 923,

925-27 (4th Cir. 2000); Raines v. United States, 423 F.2d 526, 530

(4th Cir. 1970). Failure of an attorney to file a requested notice

of appeal from a criminal conviction is per se ineffective

assistance of counsel. See Roe v. Flores-Ortega, 528 U.S. 470,

476-77 (2000); United States v. Peak, 992 F.2d 39, 42 (4th Cir.

1993). 

Because resolution of the ineffectiveness claim turns on

credibility, we vacate and remand for further proceedings. We
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dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before us and argument

would not aid the decisional process. The motions for bail and to

expand the certificate of appealability to include a claim under

Blakely v. Washington, 124 S. Ct. 2531 (2004), are denied.

VACATED AND REMANDED