United States v. Berkley Pollard ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4465
BERKLEY S. POLLARD, a/k/a Tojo,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CR-96-210-JFM)
Submitted: March 31, 1999
Decided: August 11, 1999
Before MURNAGHAN, NIEMEYER, and WILLIAMS,
Circuit Judges.
_________________________________________________________________
Vacated and remanded by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Thanos Kanellakos, Baltimore, Maryland, for Appellant. Lynne A.
Battaglia, United States Attorney, Martin J. Clarke, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Berkley S. Pollard filed a motion under 28 U.S.C.§ 2255 (West
1994 & Supp. 1998) in June 1997, raising five claims challenging his
165-month sentence for distribution of cocaine. In United States v.
Pollard, No. 97-7562 (4th Cir. Apr. 7, 1998) (unpublished), this court
upheld the district court's denial of relief as to four of those claims;
with respect to Pollard's claim that his attorney failed to file an appeal
as requested, we granted a certificate of appealability and remanded
to the district court for an evidentiary hearing and appropriate factual
findings.
At the conclusion of the hearing on remand, the district court found
that Pollard had in fact requested his attorney to file an appeal on his
behalf. Although the opinion states the district court's intention to
reinstate Pollard's right to appeal, the docket sheet does not reflect re-
entry of the judgment and commitment order. See United States v.
Peak, 992 F.2d 39, 42 (4th Cir. 1993) (remedy for defense attorney's
failure to comply with client's request to file an appeal is to reimpose
judgment to allow defendant to note appeal). Accordingly, we vacate
the order and remand to the district court to re-enter the judgment and
commitment order to allow Pollard to note a timely direct appeal. See
Fed. R. App. P. 4(b) (providing that notice of appeal in a criminal
case must be filed within ten days after entry of judgment).*
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
_________________________________________________________________
*The district court's opinion also addresses an ineffective assistance
claim raised by Pollard at the hearing on remand. Because the issue is
beyond the scope of this court's mandate, see United States v. Bell, 5
F.3d 64, 66 (4th Cir. 1993), the district court was without jurisdiction to
consider this claim. Rather, Pollard must seek authorization from this
court, pursuant to 28 U.S.C.A. § 2244 (West Supp. 1998), to file a suc-
cessive § 2255 motion.
2
argument would not aid the decisional process.
VACATED AND REMANDED
3