UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-6601

GEORGE WILLIAM MICHAEL,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, Chief District Judge.

(CR-91-68-JFM, CA-95-3458-JFM)

Submitted: November 26, 1996

Decided: January 15, 1997

Before MURNAGHAN, WILKINS, and WILLIAMS,

Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

George William Michael, Appellant Pro Se. William Warren Hamel,

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Unpublished opinions are not binding precedent in this circuit.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).
OPINION

PER CURIAM:

Appellant 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 bank robbery and use of

a firearm in a crime of violence. 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 brought before the district court, Appellant alleges that he

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

attorney never did so. The Government counters this allegation only

by stating that it was the attorney's habit to note requested appeals

and that even if the attorney failed to note a requested appeal, Appellant had no meritorious claims to present on appeal.

"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 assertion of the attorney's habit, as used to controvert

Appellant's assertion, only serves 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. 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 prior to a hearing was improper. We therefore

vacate the district court's order and remand Appellant's motion for

further consideration. We also deny Appellant's motion for default

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judgment under Fed. R. Civ. P. 55 as meritless. 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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