UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6729
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUTHER LEE ROBINSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:06-cr-00119-JAB-1; 1:07-cv-00691-JAB-
WWD)
Submitted: April 29, 2011 Decided: May 25, 2011
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Dismissed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Luther Lee Robinson, Appellant Pro Se. Graham Tod Green,
Assistant United States Attorney, Winston-Salem, North Carolina;
Angela Hewlett Miller, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luther Lee Robinson seeks to appeal the district
court’s order denying relief on his 28 U.S.C.A. § 2255 (West
Supp. 2010) motion. We dismiss the appeal in part, vacate the
district court’s order in part, and remand for further
proceedings.
We previously granted a certificate of appealability
on the issue of whether an evidentiary hearing was necessary in
the district court to resolve Robinson’s claim that counsel’s
failure to note an appeal from the criminal judgment amounted to
ineffective assistance, deferring consideration of the remainder
of Robinson’s appeal. Conceding that an evidentiary hearing was
necessary, the Government has moved to remand the case to the
district court. Without expressing an opinion on the merits of
the underlying claim, we vacate the portion of the district
court’s order denying Robinson’s claim that counsel was
ineffective for failing to file a notice of appeal from the
criminal judgment, grant the Government’s motion, and remand for
an evidentiary hearing to resolve this issue.
Robinson asserted one other claim in his informal
brief; namely, that counsel was ineffective for failing to
research, prior to sentencing, appeals pending in the Fourth
Circuit that might impact his case. The previously-granted
certificate of appealability did not include this issue. We
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decline to review the claim because Robinson did not raise it in
the district court. See Muth v. United States, 1 F.3d 246, 250
(4th Cir. 1993) (stating that issues raised for first time on
appeal will not be considered absent a showing of plain error or
a fundamental miscarriage of justice).
Accordingly, we vacate the portion of the district
court’s order denying Robinson’s claim that counsel was
ineffective for failing to note an appeal, grant the
Government’s motion to remand, and remand to the district court
for an evidentiary hearing to resolve this claim. As to the
remaining claim, we deny a certificate of appealability and
dismiss in part the appeal. We grant Robinson leave to proceed
in forma pauperis and 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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