UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6549
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHAWN SADLER, a/k/a Tangulifu M. Barber, a/k/a Carlos Watts,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:04-cr-00330-CMC-5; 3:10-cv-70219-CMC)
Submitted: October 31, 2011 Decided: November 4, 2011
Before WILKINSON, KING, and DIAZ, Circuit Judges.
Remanded by unpublished per curiam opinion.
Shawn Sadler, Appellant Pro Se. William Kenneth Witherspoon,
Assistant United States Attorney, Nancy Chastain Wicker, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn Sadler seeks to appeal the district court’s
order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2011)
motion. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(B) (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.
Sadler claims appellate counsel was ineffective for
failing to notify him of his right to file a petition for writ
of certiorari after receiving an adverse decision from this
court on direct appeal. This court’s Plan adopted pursuant to
the Criminal Justice Act provides that every attorney who
represents a defendant on direct criminal appeal shall continue
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to represent the defendant until relieved by this court or the
Supreme Court. Further,
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. Thereafter, unless otherwise instructed by
the Supreme Court or its clerk . . . counsel shall
take whatever further steps are necessary to protect
the rights of the defendant, until the petition is
granted or denied.
If the appellant requests that a petition for writ of
certiorari be filed but counsel believes that such a
petition would be frivolous, counsel may file a motion
to withdraw with this court wherein counsel requests
to be relieved of the responsibility of filing a
petition for writ of certiorari.
Plan In Implementation of the Criminal Justice Act, Part V, § 2.
Sadler’s counsel on direct appeal did not file a
petition for writ of certiorari, nor did he seek permission for
leave to withdraw from further representation. The record is
unclear as to whether Sadler’s counsel informed him of his right
to petition for a writ of certiorari in the Supreme Court. We
therefore grant a certificate of appealability on this issue and
remand for the limited purpose of allowing the district court to
make factual findings regarding whether counsel complied with
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his obligations under the CJA. * The record, as supplemented,
shall be returned to this court for further proceedings. 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.
REMANDED
*
We have not yet considered the remaining claims raised by
Sadler. Those claims will be addressed when the case is
returned to this court following the limited remand.
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