UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7798
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMUEL IRVIN WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:06-cr-00002-CMH-1; 1:08-cv-01058-CMH)
Submitted: March 22, 2010 Decided: June 7, 2010
Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit
Judges.
Vacated and remanded by unpublished per curiam opinion.
Samuel Irvin White, Appellant Pro Se. Stephanie Bibighaus
Hammerstrom, David Benjamin Joyce, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel White appeals the district court’s denial of
his Fed. R. Civ. P. 60(b) motion for relief from a final
judgment. For the reasons that follow, we vacate the order and
remand to the district court for further consideration.
White was convicted by a jury in 2006 of one count of
conspiracy to distribute 50 grams or more of cocaine base in
violation of 21 U.S.C. §§ 846, 841(a)(1) (2006), one count of
distribution of cocaine base in violation of § 841(a)(1), one
count of possession with intent to distribute cocaine base in
violation of § 841(a)(1), one count of possession of a firearm
in furtherance of drug trafficking in violation of 18 U.S.C.
§ 924(c)(1)(A) (2006), one count of possession of a firearm with
an obliterated serial number in violation of 18 U.S.C. § 922(k)
(2006), and one count of possession of a firearm and ammunition
after a felony conviction in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2006). He was sentenced to 435 months
in prison. This court affirmed his conviction and sentence.
See United States v. White, No. 06-5058 (4th Cir. July 10, 2007)
(unpublished).
In early October 2008, White contacted “Federal Post
Conviction Litigation” (FPCL), an organization based in
California, holding itself out to be a law firm specializing in
post-conviction litigation in federal district and appellate
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courts. White hired one Eric Von Logan, purportedly an attorney
with the FPCL, to file a motion under 28 U.S.C. § 2255 to vacate
his conviction and sentence. The motion, filed on October 8,
2008, was denied by the district court on October 15, 2008, on
the ground that Logan was not admitted to practice before the
Eastern District of Virginia.
In November 2008, Logan sent White a letter explaining
the basis for the district court’s dismissal. That letter
represented to White that the district court had dismissed his
motion on the ground that it was time barred by the limitations
period contained in the Anti-terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), rather than on the basis of
Logan’s failure to follow the district court’s local rules
governing attorney appearances. Attached to that letter was a
document, styled as an order from the district court. That
“order,” also dated October 15, explained that the court was
dismissing the motion as untimely under the AEDPA. No such
order appears on the district court’s docket. The “order” also
bore a signature purporting to be that of presiding District
Judge Claude M. Hilton.
White filed a pro se motion in the district court for
relief from a final judgment under Fed. R. Civ. P. 60(b). In
that motion, he claimed that the court erred in finding his
§ 2255 motion time-barred. The district court, unaware that
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White apparently had been misled as to the basis of the
dismissal of his § 2255 motion, denied the motion for relief.
White timely appealed to this court.
Comparing the order filed by the district court with
the order White has tendered to this court, we are left with the
impression that Logan altered an order of the district court in
order to misrepresent to White the basis for the disposition of
his § 2255 motion. In addition, we are concerned that Logan may
have misrepresented his credentials and may not be a licensed
attorney in any jurisdiction. Because these new facts have come
to light since the district court decided White’s Rule 60(b)
motion, however, we consider it appropriate to accord the
district court the plenary opportunity to make factual findings
and reconsider White’s motion for relief from the judgment in
light of those findings.
We therefore grant a certificate of appealability,
vacate the district court’s denial of White’s Fed. R. Civ. P.
60(b) motion, and remand this matter to the district court for
further consideration of that motion. 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 AND REMANDED
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