UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL SEAN EDMOND,

Defendant-Appellant.

No. 97-1451

(D.C. No. 96-Z-2518)

(D. Colo.)

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, and TACHA, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant-appellant Michael Sean Edmond appeals from the district court's order dismissing his motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.1 We previously granted appellant a certificate of appealability (COA) on the following issue: "Whether appellant's trial attorney rendered ineffective assistance of counsel in representing him in this case, by failing to file a timely notice of appeal when he requested her to do so." United States v. Edmond, No. 97-1451, at 1 (10th Cir. Aug. 24, 1998) (order). The government has now filed a brief in which it concedes that appellant raised this issue before the district court, but the district court failed to address it. The record supports the government's concession.2

The correct step at this juncture is to remand this case for further proceedings on the ineffectiveness issue. Cf. Romero v. Tansy, 46 F.3d 1024, 1031 (10th Cir. 1995) (remanding, in 28 U.S.C. § 2254 proceeding, for determination of whether petitioner waived his right to appellate counsel). If, after pursuing any necessary development of the record, the district court finds that appellant's counsel was constitutionally ineffective, it should resentence appellant and permit him to perfect a direct appeal. See United States v. Moore, 83 F.3d 1231, 1233 (10th Cir. 1996). Given our disposition of this issue, it is unnecessary for us to reach the merits of appellant's other issues at this time.

The judgment of the United States District Court for the District of Colorado is VACATED, and this case is REMANDED to the district court for further proceedings in light of this order and judgment.

Entered for the Court

Deanell Reece Tacha

Circuit Judge