UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7401
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PHILIP B. GREER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-01-11; CA-04-46-1)
Submitted: January 22, 2007 Decided: February 22, 2007
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Dismissed in part; vacated in part and remanded by unpublished per
curiam opinion.
Philip B. Greer, Appellant Pro Se. Amy Elizabeth Ray, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Philip B. Greer seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2255 (2000) motion. This
court granted a certificate of appealability on the issue of
whether Greer received ineffective assistance of counsel because
counsel did not file a notice of appeal. See, e.g., United
States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993). The Government
filed a brief conceding that the district court erred by denying
this claim despite the fact Greer alleged under penalty of perjury
that he requested his counsel to file a notice of appeal. We
dismiss in part and vacate in part and remand.
Because the record did not conclusively show that Greer’s
counsel was not ineffective for not filing a notice of appeal, we
vacate in part the district court’s order and remand to the
district court for an evidentiary hearing on this issue.
Greer also sought to appeal the district court’s order
denying relief on his other claims. This court granted a
certificate of appealability only on the issue regarding whether
counsel was ineffective for not filing a notice of appeal. That
part of the order denying relief on the remaining claims is not
appealable unless a circuit justice or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of
appealability will not issue absent “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000).
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A prisoner satisfies this standard by demonstrating that reasonable
jurists would find that any assessment of the constitutional claims
by the district court is debatable or wrong and that any
dispositive procedural ruling by the district court is likewise
debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683-84 (4th Cir. 2001). We have independently reviewed the
record and conclude Greer has not made the requisite showing as to
his remaining claims.
Accordingly, we grant Greer’s motion to proceed in forma
pauperis and we vacate that part of the district court’s order
denying Greer’s claim he received ineffective assistance of counsel
for failing to file a notice of appeal and remand for an
evidentiary hearing on this issue. As to the remaining claims, we
deny a certificate of appealability and dismiss in part the appeal.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED IN PART;
VACATED IN PART AND REMANDED
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