Sabir v. Corcoran

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-6481
YAHYA ABDULLAH SABIR, a/k/a John Wesley
Sydnor,
Petitioner - Appellant,
versus
THOMAS R. CORCORAN; ATTORNEY GENERAL OF THE
STATE OF MARYLAND,
Respondents - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CA-
96-3569-S)
Submitted: May 26, 1998 Decided: June 18, 1998
Before ERVIN, HAMILTON, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Yahya Abdullah Sabir, Appellant Pro Se. John Joseph Curran, Jr.,
Attorney General, Celia Anderson Davis, OFFICE OF THE ATTORNEY
GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Yahya Abdullah Sabir seeks to appeal the district court’s
order denying relief on his petition filed under 28 U.S.C.A. § 2254(West 1994 & Supp. 1998). We have reviewed the record and the
district court’s opinion and find no reversible error.* Accord-
ingly, we deny a certificate of appealability and dismiss the
appeal on the reasoning of the district court. Sabir v. Corcoran,
No. CA-96-3569-S (D. Md. Mar. 26, 1997). We deny the motion for
appointment of counsel and dispense with oral argument because the
facts and legal contentions are adequately presented in the mate-
rials before the court and argument would not aid the decisional
process.
DISMISSED
*
The district court erroneously found that Sabir had failed
to state a claim under United States v. Peak, 992 F.2d 39 (4th Cir.
1993), because the claim that Sabir wished to raise on direct
appeal lacked merit. A failure to file a requested notice of appeal
is a per se violation of the Sixth Amendment regardless of the
probability of the success of the appeal. See id. at 42. However,
a notice of appeal was filed in this case. Therefore, we conclude
that there was no violation of Peak, despite the controversy over
withdrawing and reinstating the appeal. The withdrawal and apparent
requested reinstatement occurred after expiration of the time to
note the appeal but while the appeal was awaiting disposition.
2