Hudson v. Hunt , 52 F. App'x 631 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANDREW MARK HUDSON, 
Petitioner-Appellant,
v.  No. 02-6568
J. R. HUNT; NORTH CAROLINA,
Respondents-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CA-99-12-5-BO)
Submitted: November 20, 2002
Decided: December 17, 2002
Before WILKINSON, Chief Judge, and WILKINS and
MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Andrew Mark Hudson, Appellant Pro Se. Clarence Joe DelForge, III,
OFFICE OF THE ATTORNEY GENERAL OF NORTH CARO-
LINA, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 HUDSON v. HUNT
OPINION
PER CURIAM:
In 1998, Andrew Mark Hudson was convicted in North Carolina
state court of possessing cocaine and maintaining a dwelling for con-
trolled substances. Following a jury verdict, Hudson pled guilty to
being a habitual felon and was sentenced to a consolidated sentence
of 100 to 129 months. No appeal was taken.
Hudson sought state post-conviction relief. Upon its denial he filed
a petition for federal habeas corpus relief. 28 U.S.C. § 2254 (2000).
On appeal from denial of his federal petition, we held that, pursuant
to the Supreme Court’s decision in Roe v. Flores-Ortega, 528 U.S.
470 (2000), Hudson’s trial counsel were constitutionally deficient in
failing to consult with him regarding his right to appeal. We
remanded the case for the district court’s assessment of whether Hud-
son was prejudiced by this deficiency.
On remand, the district court concluded that Hudson was preju-
diced. The court granted habeas relief, "provided, however, that the
writ shall not issue in the event the State grants [Hudson] a belated
appeal within ninety days. . . ." The State certified within that time
period that a belated appeal would be granted. Hudson seeks to
appeal.
Hudson argues that the evidence in support of his conviction is
insufficient, and therefore he should be released and his sentence dis-
missed. However, a belated appeal is an appropriate remedy for the
denial of appeal due to ineffective performance by counsel. See
Restrepo v. Kelly, 178 F.3d 634, 642 (2d Cir. 1999) (directing condi-
tional writ unless belated appeal is granted where ineffective counsel
failed to note timely appeal). Hudson may seek to raise a sufficiency
of the evidence claim before the state appellate court.
Hudson has failed to make a substantial showing of the denial of
a constitutional right, other than that for which he has received appro-
priate relief. Accordingly, we deny a certificate of appealability and
dismiss the appeal. We dispense with oral argument because the facts
HUDSON v. HUNT 3
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
DISMISSED