United States v. Smith ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6358
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT JARED SMITH, a/k/a J-Dog,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:99-cr-00198-3; 2:05-cv-00431)
Argued: September 26, 2008 Decided: November 19, 2008
Before MICHAEL and MOTZ, Circuit Judges, and James C. DEVER III,
United States District Judge for the Eastern District of North
Carolina, sitting by designation.
Vacated by unpublished per curiam opinion.
ARGUED: Susan Hills Nelson, Student Counsel, CHARLESTON SCHOOL
OF LAW, Charleston, South Carolina, for Appellant. Miller A.
Bushong, III, OFFICE OF THE UNITED STATES ATTORNEY, Beckley,
West Virginia, for Appellee. ON BRIEF: Margaret M. Lawton,
CHARLESTON SCHOOL OF LAW, Charleston, South Carolina, for
Appellant. Charles T. Miller, United States Attorney, John J.
Frail, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Robert Jared Smith appeals from the judgment of the
United States District Court for the Southern District of West
Virginia denying his motion for post-conviction relief under 28
U.S.C. § 2255. Smith claims in part that his appellate counsel
failed to carry out his request to file a petition for a writ of
certiorari to the Supreme Court of the United States. On appeal
we construe Smith’s § 2255 motion as a motion to recall our
mandate. We grant the motion, which allows us to vacate and
reenter our earlier judgment affirming Smith’s sentence. This
relief will enable Smith to file a timely petition for
certiorari.
I.
Smith was tried and convicted on July 13, 2000, of
conspiracy to distribute cocaine base and aiding and abetting
possession with intent to distribute cocaine base. See 21
U.S.C. § 841(a)(1); 18 U.S.C. § 2. At sentencing the district
court enhanced Smith’s offense level by four levels based on
findings that Smith had played a leadership role in the original
conspiracy. Smith was sentenced within the guidelines range to
a life sentence on the conspiracy count and a concurrent twenty-
year sentence for the aiding and abetting count. On appeal we
affirmed Smith’s convictions, but remanded after concluding that
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the district court had erred by applying the leadership role
enhancement. At Smith’s second sentencing the district court
resentenced him without using the leadership role enhancement.
After calculating a guidelines range of 324 to 405 months, the
district court resentenced Smith to 405 months’ imprisonment on
the conspiracy count and a concurrent sentence of 240 months on
the aiding and abetting count.
Smith appealed his new sentence, and pursuant to the
provisions of the Criminal Justice Act (CJA), 18 U.S.C. § 3006A,
we appointed counsel (hereafter, “appellate counsel” or
“counsel”) to represent him in the appeal. Appellate counsel
filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), arguing that the evidence was insufficient to
support Smith’s conspiracy conviction. We affirmed the new
sentence and noted that the mandate rule precluded us from
considering the evidentiary issue. United States v. Smith, 98
Fed. App’x 962 (4th Cir. 2004) (unpublished). Consistent with
the CJA, our opinion, filed June 8, 2004, instructed appellate
counsel to inform Smith in writing of his right to petition the
Supreme Court of the United States for further review. Our
opinion also advised counsel that “If Smith requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court to
withdraw from representation.” J.A. 68.
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In a letter dated June 25, 2004, appellate counsel
informed Smith that the Fourth Circuit had denied his appeal and
wrote, “You have a right to have a Petition for Certiorari filed
with the United States Supreme Court, and I will do that for you
if you request.” J.A. 114. The last sentence of counsel’s
letter repeated her offer: “Please let me know if you want me
to file the Petition.” Id. The letter also included a hand-
written postscript in which counsel informed Smith that the
Supreme Court had “just found Washington State’s sentencing
guidelines unconstitutional. If you haven’t filed your habeas
petition yet please include that issue re: the Federal
Sentencing Guidelines.” Id. Appellate counsel was apparently
referring to Blakely v. Washington, 542 U.S. 296 (2004), which
the Supreme Court decided on June 24, 2004, the day before her
letter to Smith.
Smith says in his affidavit that he talked with
appellate counsel on the telephone shortly after receiving her
June 25, 2004, letter and requested that she file a petition for
a writ of certiorari. Smith also says that counsel agreed to
file the petition. Counsel, in her affidavit, says that she
remembers having a conversation with Smith, but she no longer
has her notes from the conversation. (Counsel did not address
the key issue, that is, whether she had been asked to file a
petition for certiorari. She admitted, however, that she did
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not move to withdraw as counsel.) Two months after making his
request, Smith called counsel to follow up, but he was unable to
reach her. The affidavits prompted the government to concede
that counsel, “after being requested to do so . . . failed to
prepare for filing in the Supreme Court a timely Petition for a
Writ of Certiorari.” J.A. 119.
Smith filed in district court a pro se motion under 28
U.S.C. § 2255, arguing that he should be resentenced pursuant
to United States v. Booker, 543 U.S. 220 (2005), and that he was
deprived of the effective assistance of appellate counsel
because his counsel failed to file a petition for certiorari, as
requested. The district court denied Smith’s petition, holding
that Smith did not have a constitutional right to have his
appellate counsel file a petition for certiorari in the Supreme
Court. Smith appealed the dismissal, and this court granted a
certificate of appealability on the question of whether
counsel’s failure to file a certiorari petition, as requested,
violates the Sixth Amendment right to counsel.
II.
We first consider Smith’s alternative argument. He
contends that appellate counsel’s representation after the entry
of judgment in his second appeal violated his rights under the
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Criminal Justice Act, 18 U.S.C. § 3006A. This court’s Plan In
Implementation of the Criminal Justice Act (CJA Plan) provides:
Appellate Counsel: Every attorney . . . who
represents a defendant in this court shall continue to
represent his client after termination of the appeal
unless relieved of further responsibility by this
court or the Supreme Court. Where counsel has not
been relieved:
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, or unless any
applicable rule, order or plan of the Supreme Court
shall otherwise provide, 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. The motion
must reflect that a copy was served on the client.
CJA Plan, Part V, § 2; see also 18 U.S.C. § 3006A. In this
case, appellate counsel did not file a motion to withdraw. And,
as the government concedes, counsel failed to file a petition
for certiorari after being requested to do so by Smith. These
circumstances resulted in a violation of Smith’s rights under
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this court’s CJA Plan. We must therefore determine what remedy,
if any, is available to Smith.
Smith points out that Wilkins v. United States, 441
U.S. 468 (1979) (per curiam), suggests the remedy. In Wilkins,
as in the case before us, court-appointed counsel failed to file
a petition for certiorari after being requested to do so. Id.
at 468. The Court first pointed to the CJA as the basis for
relief, summarizing a defendant’s right under the CJA to the
assistance of counsel in seeking certiorari. When counsel has
failed to fulfill its CJA obligations with respect to the matter
of certiorari, the Supreme Court noted that a circuit court
could vacate and reenter judgment to permit a defendant to file
a timely petition for certiorari:
Had the petitioner presented his dilemma to the Court
of Appeals by way of a motion for the appointment of
counsel to assist him in seeking review here, the
court then could have vacated its judgment affirming
the convictions and entered a new one, so that this
petitioner, with the assistance of counsel, could file
a timely petition for certiorari.
Wilkins, 441 U.S. at 469; see also Schreiner v. United States,
404 U.S. 67, 67 (1971) (per curiam) (invoking the CJA and
remanding to court of appeals for reentry of judgment and
appointment of counsel to assist with seeking review in the
Supreme Court).
To vacate and reenter the judgment in Smith’s case, we
must recall our mandate, an action that we take only in
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extraordinary circumstances. See Calderon v. Thompson, 523 U.S.
538, 549-50 (1998); Alphin v. Henson, 552 F.2d 1033, 1035 (4th
Cir. 1977) (per curiam).
We have previously recalled our mandate and reentered
judgment in a case similar to this one. In United States v.
Masters, No. 91-6100, 1992 WL 232466, at *3 (4th Cir. Sept. 22,
1992) (unpublished), we determined that appellate counsel had
violated his duty under the CJA Plan to file a petition for
certiorari requested by his client. We denied the collateral
relief requested under § 2255, but, relying on Wilkins, we
vacated the mandate and reentered judgment to enable the
defendant to file a timely petition for certiorari. Id. Other
courts of appeals have followed the same course. See, e.g.,
Nnebe v. United States, 534 F.3d 87, 91 (2d Cir. 2008)
(recalling the mandate and reentering judgment so that timely
petition for certiorari might be filed on behalf of defendant);
United States v. Howell, 37 F.3d 1207, 1210 (7th Cir. 1994)
(same); United States v. James, 990 F.2d 804, 805 (5th Cir.
1993) (same).
Smith has not filed a motion to recall the mandate.
Rather, he filed a pro se motion for post-conviction relief
under 28 U.S.C. § 2255, and he appeals the denial of that
motion. We may, of course, construe his pro se filings
liberally. See Hill v. Braxton, 277 F.3d 701, 707 (4th Cir.
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2002) (“[T]he long-standing practice is to construe pro se
pleadings liberally.”); see also Hughes v. Rowe, 449 U.S. 5, 9
(1980) (holding that complaints drafted by pro se prisoners are
held to “less stringent standards than formal pleadings drafted
by lawyers”) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)). We have, on occasion, construed a § 2255 petition as a
motion to recall the mandate. See Masters, 976 F.2d at *3; see
also United States v. Capers, 182 Fed. App’x 207, 208 n.* (4th
Cir. 2006) (per curiam) (noting that the court may construe a
§ 2255 motion as a motion to recall the mandate where
extraordinary circumstances warrant a recall). And, other
courts of appeals have done the same. See, e.g., Nnebe, 534
F.3d at 91; Howell, 37 F.3d at 1210.
In this case Smith was deprived of his CJA right to
counsel’s assistance in filing a petition for certiorari, if “in
counsel’s considered judgment there [were] grounds for seeking
Supreme Court review.” CJA Plan, Part V, § 2. This deprivation
is sufficiently extraordinary to warrant our treatment of
Smith’s § 2255 motion as a motion to recall the mandate, which
we grant in order to provide appropriate relief. (The
government acknowledged at oral argument that it did not object
to this resolution.)
Accordingly, an order will be entered recalling our
mandate and vacating and reentering judgment in United States v.
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Smith, No. 02-4928 (4th Cir. June 8, 2004). Counsel will be
appointed to assist Smith (in accordance with this court’s CJA
Plan) with respect to the matter of a petition for certiorari to
the Supreme Court of the United States.
Because we treat Smith’s § 2255 motion as a motion to
recall the mandate, we vacate the district court’s order
dismissing the § 2255 motion. *
VACATED
*
In light of the relief granted, it is not necessary for us
to reach the merits of the district court’s decision.
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