PUBLISH



              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________
                            No. 94-4774
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 94-37-CIV-KEHOE
                                 91-742-CR-KEHOE


ROBERT MONTEMOINO,

                                                Petitioner-Appellant,

                              versus

UNITED STATES OF AMERICA,

                                                 Respondent-Appellee.

                      _______________________

          Appeal from the United States District Court
              for the Southern District of Florida
                     _______________________
                        (October 20, 1995)

Before DUBINA, CARNES and BARKETT, Circuit Judges.


PER CURIAM:
       Robert Montemoino was convicted, based upon his guilty plea,

of conspiracy to possess with intent to distribute cocaine. He did

not appeal his conviction or sentence.                   Thereafter, Montemoino

filed a 28 U.S.C. § 2255 petition raising a large number of grounds

for    relief.       The    district   court       denied   that    petition,     and

Montemoino appeals.

       The district court's denial of the petition was proper, except

in one respect.            One of the grounds Montemoino raised in the

petition was that his attorney had rendered ineffective assistance

of counsel by failing to appeal his sentence.                 Montemoino alleged

in the petition that he had requested his attorney to file a notice

of appeal, but the attorney failed to do so.                Nothing in the record

of    the   guilty   plea    proceeding       or   the   record    of   the   §   2255

proceeding contradicts Montemoino's allegation. The district court

did not hold a hearing on the petition.

       This Court has long held that an attorney's failure to file an

appeal after the defendant requests him to do so entitles the

defendant to an out-of-time appeal, even without a showing that

there would have been any viable grounds for an appeal.                   See e.g.,

Gray v. United States, 

, 967-68 (11th Cir. 1987); see
also Ferguson v. United States, 

, 1072-73 (11th Cir.

1983) (and cases cited therein). However, this Court has also held

that a different rule applies to guilty plea cases, because:

             [t]he considerations . . . underlying an
             acceptance of a guilty plea are quite
             different from the considerations underlying a
             defendant's decision to take a direct appeal
             from a judgment of conviction. A guilty plea,
             since it admits all the elements of a formal

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          criminal charge, waives all non-jurisdictional
          defects   in   the   proceedings   against   a
          defendant. Absent a jurisdictional defect, a
          defendant usually has no right to appeal from
          a plea of guilty.

(quoting Barrientos v. United States ,

, 842-43 (5th Cir. 1982) (citations omitted).   Because

the few grounds upon which the guilty plea may be challenged are

not limited to direct appellate review, but instead are more

appropriately raised in § 2255 proceedings, an attorney's failure

to file a direct appeal from a guilty plea "does not constitute

ineffective assistance of counsel since it causes no harm to the

defendant."   

.

     At first blush, the Ferguson rule would appear to foreclose

Montemoino's claim that his attorney's failure to file an appeal

constituted ineffective assistance of counsel.    However, Ferguson

is a pre-Sentencing Guidelines case.        See U.S.S.G. ch.1, pt.A

(observing that the Sentencing Guidelines took effect November 1,

1987).   Absent an express waiver of the right to appeal his

sentence, a defendant who pleads guilty and is sentenced under the

Guidelines has a right to direct appeal of his sentence.        See
United States v. Bushert, 

(11th Cir. 1993).   Because

of that opportunity, a defendant has no right to raise Guidelines

sentencing issues in a § 2255 proceeding.       See Cross v. United

States, 

, 1289 (11th Cir.), cert. denied, 

(1990) (holding that a petitioner may not litigate claims in a §

2255 proceeding that were not raised on direct appeal absent a

showing of both cause and actual prejudice).     The reasoning that


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underlies the Ferguson rule in pre-Guidelines cases does not apply

insofar as sentencing issues in Guidelines cases are concerned,

because none of the Guidelines sentencing issues available to the

defendant are waived by the plea, unless there is an express waiver

of   the   right   to    appeal    the   sentence    that    complies   with   the

requirements of Bushert.           There was none in this case.

      Accordingly, if Montemoino requested his counsel to file an

appeal, and counsel failed to do so, Montemoino is entitled to an

out-of-time appeal on any sentencing issues.                Such an appeal would

extend only to sentencing issues.             The     Ferguson rule is still

applicable insofar as guilt stage, or guilty plea validity, issues

are concerned, because those issues can be raised in a § 2255

proceeding.        They were in this case, and the district court

properly rejected them on the merits.

      We   remand       for   an   evidentiary      hearing    on   Montemoino's

allegation that he requested his counsel to file a direct appeal.

If the district court finds that Montemoino did make such a

request, it should enter an order granting an out-of-time appeal

limited to sentencing issues.



      AFFIRMED IN PART and REVERSED IN PART.




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