UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-6725

VINCENT HARRIS,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Malcolm J. Howard, District Judge.

(CR-93-59-H, CA-97-13-4-H)

Submitted: November 25, 1997

Decided: December 31, 1997

Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Vincent Harris, Appellant Pro Se.

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Unpublished opinions are not binding precedent in this circuit.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:

Vincent Ray Harris appeals from the district court's order denying

relief on his 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997) motion.

Harris pled guilty to bank robbery and was sentenced to sixty-six

months imprisonment. In his § 2255 motion, Harris claimed he

received ineffective assistance of counsel when his attorney failed to

note an appeal as instructed by Harris. The district court found his

claim to be without merit and denied relief.* Harris appeals from this

order.

This court has held 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).

Unless it is clear from the pleadings, files, and records that the prisoner is not entitled to relief, § 2255 makes an evidentiary hearing

mandatory. 28 U.S.C.A. § 2255; see Raines v. United States, 423 F.2d

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*The government filed a motion for summary judgment. Harris was

granted an enlargement of time in which to respond to the motion, but

failed to respond within the extended time period. As such, pursuant to

Local Rule 4.04, the district court granted the government's motion and

dismissed the action. Nevertheless, "in an abundance of caution," the

court evaluated the merits of Harris's claim and concluded the claim was

meritless.

However, Harris did respond prior to entry of the court's order with

an affidavit in which he reasserted that he had requested counsel to note

an appeal. The affidavit was filed on April 28, 1997, two days before the

court's order was entered on April 30, 1997, and ten days after the

extended time in which the court had set for a response on April 18,

1997. The court's memorandum opinion did not mention Harris's affidavit and it appears as though the district court construed it as a notice of

appeal, even though it was filed two days before the court's order was

entered. Even if the court did not consider the affidavit, Harris's complaint was verified, and a verified complaint is the equivalent of an

opposing affidavit for summary judgment purposes. Williams v. Griffin,

952 F.2d 820, 823 (4th Cir. 1991).

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526, 529 (4th Cir. 1970). The district court's determinations as to

whether to hold a hearing under § 2255 and whether petitioner is

required to be present at the hearing are reviewed for abuse of discretion. Raines, 423 F.2d at 529-30. Notwithstanding the court's wide

discretion in the matter, "[t]here will remain, however, a category of

petitions, usually involving credibility, that will require an evidentiary

hearing in open court." Id. "When the issue is one of credibility, resolution on the basis of affidavits can rarely be conclusive . . . ." Id.

There is a factual dispute as to whether Harris requested his attorney, Elizabeth Manton, to file a direct appeal following his conviction. By verified complaint, Harris alleged that Manton failed to file

a notice of appeal as requested. See Williams v. Griffin, 952 F.2d 820,

823 (4th Cir. 1991) (holding that a verified complaint can substitute

for an affidavit opposing summary judgment). Manton did not submit

an affidavit; instead, the court relied on an affidavit submitted by the

acting Federal Public Defender, Edwin Walker, who stated that after

speaking with Manton, it was his understanding that Harris said he

did not wish to pursue an appeal. Based on Walker's affidavit, the

court's own recollection and notes of the "overwhelming" evidence

against Harris, the plea agreement, the Rule 11 colloquy, and counsel's performance at trial, the district court held that Manton did in

fact provide "effective and zealous representation of the petitioner

both before, during and after the judgment."

Because the evidence on the issue was conflicting, the district court

should have conducted a hearing before making a factual determination. See Becton v. Barnett, 920 F.2d 1190 (4th Cir. 1990) (petitioner's allegation that his attorney failed to file a notice of appeal as

instructed required remand for evidentiary hearing). Accordingly, we

grant a certificate of appealability and remand with instructions for

the district court to conduct an evidentiary hearing to make appropriate factual findings.

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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