United States v. Berry

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-7059
ERNEST BERRY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-99-186, CA-00-1981-6-20)
Submitted: January 31, 2001
Decided: February 14, 2001
Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Ernest Berry, Appellant Pro Se. E. Jean Howard, OFFICE OF THE
UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BERRY
OPINION
PER CURIAM:
Ernest Berry appeals the district court’s denial of his 28 U.S.C.A.
§ 2255 (West Supp. 2000) motion. We grant a certificate of appeala-
bility, vacate, and remand.
Berry asserts that while he was advised of his right to appeal, nei-
ther the district court nor his attorney advised him of his right to seek
leave to proceed on appeal in forma pauperis. He further asserts that
due to this failure, he defaulted on his right to appeal.
A district court must advise a defendant of his right to appeal his
sentence and of his right to apply for leave to proceed in forma
pauperis if he is unable to pay for the cost of an appeal. Fed. R. Crim.
P. 32(c). A district court’s failure to comply with Rule 32(c) is
reviewed for harmless error. Peguero v. United States, 526 U.S. 23(1999) (holding that a defendant who had independent knowledge of
his right to appeal was not prejudiced by a court’s failure to advise
him of that right). In its current state of development, the record is
void of any evidence demonstrating that Berry was aware of his right
to seek leave to proceed on appeal in forma pauperis. Accordingly,
we vacate the district court’s order and remand for the district court
to make a factual determination on this issue.* In remanding, we note
that the Government bears the burden of establishing harmlessness by
demonstrating, through clear and convincing evidence, that Berry
either actually exercised his right, waived it, or had independent
knowledge of it. United States v. Soto, 185 F.3d 48, 55 (2d Cir. 1999)
("Where a sentencing court has failed to inform a defendant of his
right to appeal, it shall be the government’s burden to present clear
and convincing evidence that the defendant has suffered no such prej-
udice."). Merely asserting that Berry’s raised claims are currently
nonmeritorious is insufficient to demonstrate an absence of prejudice.
Peguero, 526 U.S. at 30 (O’Connor, J., concurring); see also Roe v.
Flores-Ortega, 528 U.S. 470, ___, 120 S. Ct. 1029, 1040 (2000);
Rodriquez v. United States, 395 U.S. 327 (1969); United States v.
Peak, 992 F.2d 41 (4th Cir. 1993).
*We deny Berry’s motion for production of documents.
UNITED STATES v. BERRY 3
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED