United States v. Terrell ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6886
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN JOHNSON TERRELL, II,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:06-cr-00493-JCC-1; 1:09-cv-00846-JCC)
Submitted: December 7, 2010 Decided: December 21, 2010
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
John Johnson Terrell, II, Appellant Pro Se. William H. Jones,
II, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Johnson Terrell, II, appeals the district court's
order denying relief on his 28 U.S.C.A § 2255 (West Supp. 2010)
motion. We vacate and remand for further proceedings.
Terrell pleaded guilty to one count of possession with
intent to distribute five grams or more of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2006), and to possession of
a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c) (2006). Terrell was sentenced
as a career offender to a total of 262 months of imprisonment.
Judgment was entered on March 9, 2007. There is conflicting
evidence as to whether Terrell directed his attorney,
Brisendine, to file a direct appeal. Terrell claims he
repeatedly attempted to contact Brisendine, and Brisendine never
responded. Brisendine avers he never received any of Terrell’s
letters and was never instructed to file an appeal.
After learning an appeal had never been filed in his
case, Terrell filed a § 2255 motion. However, by the date the
motion was filed, the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”) statute of limitations had run. 28 U.S.C.
§ 2255(f) (2006). Although Terrell argued for equitable tolling
of the statute of limitations, the district court found that
such tolling was inapplicable. The court, however, granted a
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certificate of appealability as to its resolution of the
applicability of equitable tolling.
After the district court issued its order, the Supreme
Court issued its decision in Holland v. Florida, 130 S. Ct. 2549(2010). Holland affirmed that equitable tolling applies to the
AEDPA’s statute of limitations. Id. at 2554. Specifically, the
Court found that, in order to be entitled to equitable tolling,
the movant must show (1) that he has diligently pursued his
rights and (2) that some extraordinary circumstance prevented
the timely filing. Id. at 2562. The Court also discussed
whether attorney misconduct could satisfy the “extraordinary
circumstance” requirement. Id. at 2564-65. Answering the
question in the affirmative, the Court held that, while the
attorney misconduct must be more egregious than a “‘garden
variety claim of excusable neglect,’” the requirement might be
met by a showing of an extraordinary failure by the attorney to
provide reasonably competent legal work, to communicate with his
client, to implement his client’s reasonable request, to keep
his clients informed of key developments in their cases, and to
never abandon a client. Id. at 2564 (quoting Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 96 (1990)).
Because the district court did not have the benefit of
Holland when it considered Terrell’s motion, and because there
is conflicting evidence in the record as to both prongs of the
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Holland analysis, we vacate the district court’s order and
remand for further proceedings consistent with Holland. 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.
VACATED AND REMANDED
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