UNITED STATES COURT OF APPEALS
                       FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 99-3176
                                   ___________

                                          *
Steven Wayne Kurkowski,                   *
                                          *
             Appellant,                   *   Appeal from the United States
                                          *   District Court for the
      v.                                  *   District of Minnesota.
                                          *
United States of America,                 *   [UNPUBLISHED]
                                          *
             Appellee.                    *


                                   ___________

                  Submitted:       June 26, 2000

                    Filed:         July 3, 2000
                                    ___________

Before McMILLIAN, FAGG, and HANSEN, Circuit Judges.
                            ___________

PER CURIAM.

       In the 28 U.S.C. § 2255 proceedings below, appellant and defense counsel filed
conflicting sworn statements on whether appellant had instructed counsel to file a
notice of appeal in his criminal case. The district court dismissed the § 2255 motion
without a hearing because it did not believe appellant could raise any meritorious
issues on appeal. An evidentiary hearing is required if the motion, files, and records
are inconclusive regarding whether a movant has instructed counsel to file an appeal.
See Holloway v. United States, 

, 1357 (8th Cir. 1992). We do not
require a showing of prejudice or the likelihood of success on appeal when the issue
is whether counsel deprived the movant of his right to a direct appeal. See Hollis v.
United States, 

, 259 (8th Cir. 1982). Accordingly, we reverse the district
court’s decision and remand for an evidentiary hearing on whether appellant
instructed counsel to file an appeal.




      A true copy.

             Attest:

                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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