US v. Gary Tidd, No. 13-7000 (4th Cir. 2014)

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This opinion or order relates to an opinion or order originally issued on October 23, 2013.

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7000 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GARY LEE TIDD, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:10-cr-00043-F-1; 7:12-cv-00106-F) Submitted: August 26, 2014 Before WILKINSON and Senior Circuit Judge. GREGORY, Decided: Circuit Judges, August 29, 2014 and HAMILTON, Vacated and remanded by unpublished per curiam opinion. Gary Lee Tidd, Appellant Pro Se. Jennifer P. May-Parker, Assistant United States Attorney, Shailika K. Shah, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gary Lee Tidd appeals the district court s dismissing his 28 U.S.C. § 2255 (2012) motion. order We granted a certificate of appealability on the issue of whether Tidd raised a viable claim of ineffective assistance of counsel based on counsel s alleged failure to comply with Tidd s direction and note an appeal. The Government concedes that Tidd s allegations stated a potentially meritorious claim of ineffective assistance and that the district court s dismissal of that claim premature in the absence of an evidentiary hearing. Flores-Ortega, Oliver, 865 528 F.2d U.S. 600, 470, 601 477 (4th (2000); Cir. United 1989); see was Roe v. States also v. United States v. Poindexter, 492 F.3d 263, 269 (4th Cir. 2007); United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993). Accordingly, we vacate the district court s order dismissing Tidd s § 2255 motion and remand for an evidentiary hearing on whether counsel neglected Tidd s direction to appeal. We dispense conclusions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid in the decisional process. VACATED AND REMANDED 2

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