UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL ALLEN, Petitioner-Appellant,

v. No. 00-6903

JOHN TAYLOR, Warden, Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. David G. Lowe, Magistrate Judge. (CA-00-117)

Submitted: September 20, 2000

Decided: October 10, 2000

Before LUTTIG and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit Judge.

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Dismissed in part, vacated in part, and remanded with instructions by unpublished per curiam opinion.

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COUNSEL

Michael Allen, Appellant Pro Se. Stephen R. McCullough, Assistant Attorney General, Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION

PER CURIAM:

Michael Allen seeks to appeal the magistrate judge's* order deny- ing relief on his petition filed under 28 U.S.C.A.§ 2254 (West 1994 & Supp. 2000). We have reviewed the record and the magistrate judge's opinion and have determined that additional factual determi- nations are required regarding Allen's claim of ineffective assistance of counsel on appeal, in light of the Supreme Court's decision in Roe v. Flores-Ortega,

,

(2000). Because the analysis prescribed by Roe is highly fact-specific, we conclude that it should be performed by the district court in the first instance. Accordingly, we grant a certificate of appealability as to Allen's claim of ineffective assistance relating to counsel's failure to demand review by a panel of the Court of Appeals of Virginia or petition the Supreme Court of Virginia for review, vacate the portions of the mag- istrate judge's order relating to that issue, and remand for further con- sideration in light of Roe.

We have reviewed the magistrate judge's disposition of Allen's remaining claims and find no reversible error. We therefore deny a certificate of appealability and dismiss the appeal on the reasoning of the district court as to those claims. See Allen v. Taylor, No. CA-00- 117 (E.D. Va. June 13, 2000). We deny Allen's motion for oral argu- ment because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the deci- sional process.

DISMISSED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS _________________________________________________________________ *The parties consented to proceed before a magistrate judge pursuant to

(c) (West 1993 & Supp. 2000).

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