Miller v. Beshears ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RODERICK W. MILLER,
Petitioner-Appellant,
v.
No. 98-7855
EARL BESHEARS, Warden; ATTORNEY
GENERAL FOR THE STATE OF
MARYLAND,
Respondents-Appellees.
On Remand from the United States Supreme Court.
(S. Ct. No. 99-6233)
Submitted: May 13, 1999
Decided: May 19, 1999
Decided on Remand: May 31, 2000
Before WIDENER and MOTZ, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Dismissed in part, vacated in part, and remanded with instructions by
unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Roderick W. Miller, Appellant Pro Se. John Joseph Curran, Jr., Attor-
ney General, Regina Hollins Lewis, Assistant Attorney General, Bal-
timore, Maryland, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
This case appears before this court for the second time pursuant to
the order of the Supreme Court vacating our prior judgment and
remanding for further consideration in light of the Court's decision in
Roe v. Flores-Ortega, 528 U.S. ___, 120 S. Ct. 1029 (2000). See Mil-
ler v. Kaloroumakis, 120 S. Ct. 1239 (2000). Because the analysis
prescribed by Roe is highly fact-specific, we conclude that it should
be performed by the district court in the first instance. Accordingly,
we grant a certificate of appealability as to Miller's claims of ineffec-
tive assistance relating to counsel's failure to consult with his client
and inquire as to the need for an appeal, and his related claim that this
ineffective assistance provided cause for Miller's failure to timely
raise his numerous claims of trial court error on appeal, vacate the
portions of the district court's order relating to these issues, and
remand for further consideration in light of Roe . Because our prior
dismissal of Miller's remaining ineffective assistance claims falls out-
side the scope of the Supreme Court's remand, we again deny a certif-
icate of appealability as to those claims and dismiss Miller's appeal
of those claims. See Lowery v. Circuit City Stores, Inc., 206 F.3d 431,
437 (4th Cir. 2000). 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.
DISMISSED IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS
2