United States v. Larry Lingenfelter , 685 F. App'x 253 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7339
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY EUGENE LINGENFELTER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:10-cr-00153-RAJ-TEM-1; 2:14-cv-00575-RAJ)
Submitted: March 28, 2017 Decided: April 20, 2017
Before GREGORY, Chief Judge, and KING and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Jeremy Brian Gordon, JEREMY GORDON, PLLC, Mansfield, Texas, for
Appellant. Stephen Westley Haynie, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Eugene Lingenfelter seeks to appeal the district
court’s order denying his 28 U.S.C. § 2255 (2012) motion as
untimely. Lingenfelter may not appeal from the dismissal of his
§ 2255 motion unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012).
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) (2012). Where the district court denies relief on
the merits, a prisoner satisfies this standard by demonstrating
“that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). Where, as here, the
district court denies relief on procedural grounds, the prisoner
must show that jurists of reason would find debatable whether the
motion states a valid claim of the denial of a constitutional
right, and whether the district court’s procedural ruling was
correct. Slack, 529 U.S. at 484-85.
We affirmed Lingenfelter’s conviction on direct appeal.
United States v. Lingenfelter, 473 F. App’x 303 (4th Cir. 2012)
(unpublished), cert. denied 134 S. Ct. 534 (2013). The Supreme
Court denied Lingenfelter’s petition for a writ of certiorari on
November 4, 2013, and Lingenfelter timely filed the instant motion
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on October 31, 2014. See 28 U.S.C. § 2255(f)(1). Accordingly, we
find that jurists of reason would find debatable the district
court’s dismissal of Lingenfelter’s motion on timeliness grounds.
Lingenfelter’s § 2255 motion advanced two claims of
ineffective assistance of counsel. First, Lingenfelter alleged
that his trial counsel failed to inform him of a favorable plea
offer that the Government had memorialized in an email to his
counsel. “[A]s a general rule, defense counsel has the duty to
communicate formal offers from the prosecution to accept a plea on
terms and conditions that may be favorable to the accused.”
Missouri v. Frye, 566 U.S. 133, 145 (2012). Because Lingenfelter
contended that his counsel did not perform up to this standard, we
conclude that jurists of reason would find debatable whether he
stated a violation of his Sixth Amendment right to counsel.
Lingenfelter also challenged his counsel’s decision not to
introduce certain evidence at trial. However, in his counseled
appellate brief, Lingenfelter merely notes that this claim was
made below without offering any argument as to its debatability.
Thus, he has waived appellate review of this claim. See Jackson v.
Lightsey, 775 F.3d 170, 177 (4th Cir. 2014).
Accordingly, we grant a certificate of appealability on the
issue of whether Lingenfelter was deprived of the effective
assistance of counsel through his counsel’s alleged failure to
apprise him of a plea offer, and deny a certificate of
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appealability on the assertion of ineffective assistance based on
counsel’s decision not to introduce certain evidence at trial. We
vacate the district court’s order and remand for further
proceedings. * We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
VACATED AND REMANDED
* By this disposition, we express no view on the merits of
Lingenfelter’s claim.
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