UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6188
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS TEJEDA-RAMIREZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:06-cr-00393-HMH-1; 6:10-cv-70134-HMH)
Submitted: May 7, 2010 Decided: June 2, 2010
Before MOTZ, KING, and DAVIS, Circuit Judges.
Vacated in part and remanded; dismissed in part by unpublished
per curiam opinion.
Luis Tejeda-Ramirez, Appellant Pro Se. Alan Lance Crick,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Tejeda-Ramirez seeks to appeal the district
court’s order denying relief on his 28 U.S.C.A. § 2255 (West
Supp. 2009) motion. The order is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (2006). 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) (2006). When the
district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the constitutional
claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the motion states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85. We grant a certificate of appealability as
to one issue, vacate the district court’s order in part and
remand for further proceedings, and we deny a certificate of
appealability as to the remaining issues and dismiss the appeal
in part.
Tejeda-Ramirez claims appellate counsel was
ineffective for failing to timely notify him of his right to
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file a petition for writ of certiorari after receiving an
adverse decision from this court. This court’s opinion in his
appeal was issued December 11, 2007. Tejeda-Ramirez claims he
did not hear from counsel regarding the status of the appeal and
it was not until October 27, 2009, when he made an inquiry with
this court that he learned of the result of his appeal.
In Wilkins v. United States, 441 U.S. 468 (1979), the
Supreme Court provided relief, under the Criminal Justice Act
(“CJA”), for an out-of-time pro se petitioner whose counsel
never filed a petition for certiorari despite assurances that
the petition was filed. It stated that “the Courts of Appeals
for all of the Circuits provide in their rules or in plans
adopted pursuant to the Criminal Justice Act that a court-
appointed lawyer must, if his client wishes to seek further
review in this Court, represent him in filing a petition for
certiorari.” Wilkins, 441 U.S. at 469.
This court’s Plan states in relevant part:
If the judgment of this court is adverse to the
defendant, counsel shall inform the defendant, in
writing, of his right to petition the Supreme Court
for a writ of certiorari. If the defendant, in
writing, so requests and in counsel’s considered
judgment there are grounds for seeking Supreme Court
review, counsel shall prepare and file a timely
petition for such a writ and transmit a copy to the
defendant.
Plan, Part V, § 2.
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In Proffitt v. United States, 549 F.2d 910, 912 (4th
Cir. 1976), this court vacated the district court’s order
dismissing a § 2255 motion that alleged counsel’s failure to
consult the defendant and remanded the case for the purpose of
an evidentiary hearing because the district court incorrectly
found the appointed counsel had no duty to notify the defendant
of the result of his appeal before this court and of the right
to seek discretionary review from the Supreme Court.
While the district court correctly found it was
without authority to order an appropriate remedy, recalling the
mandate and reissuing this court’s opinion, it can make factual
findings in reference to Tejeda-Ramirez’s claim. Thus, we grant
a certificate of appealability on the issue of whether appellate
counsel failed to timely inform Tejeda-Ramirez in writing of his
right to file a petition for writ of certiorari after receiving
an adverse decision from this court and remand for the purpose
of making factual findings. If the district court concludes
Tejeda-Ramirez did receive ineffective assistance of counsel in
this regard, Tejeda-Ramirez may file a motion in this court to
recall the mandate and reissue the court’s judgment and for
appointment of counsel to assist in preparing a petition for
writ of certiorari.
As for Tejeda-Ramirez’s remaining claims, we have
independently reviewed the record and conclude he has not made
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the requisite showing and we deny a certificate of appealability
on the remaining claims.
Accordingly, we grant a certificate of appealability
on the issue of whether Tejeda-Ramirez’s appellate counsel
failed to timely inform him in writing of his right to file a
petition for writ of certiorari after receiving an adverse
decision from this court, vacate the district court’s order in
part, and remand for the purpose of having the court make
factual findings regarding this issue. We deny a certificate of
appealability with respect to the remaining issues and dismiss
the appeal in part. 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.
VACATED IN PART AND REMANDED;
DISMISSED IN PART
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