United States v. White

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-7907
ALBERTA ELAINE WHITE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Dennis W. Shedd, District Judge.
(CR-89-214, CA-93-2722-0-19-BC)
Submitted: May 14, 1996
Decided: June 14, 1996
Before WILKINS and WILLIAMS, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
Alberta Elaine White, Appellant Pro Se. Alfred William Walker
Bethea, Assistant United States Attorney, Florence, South Carolina,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Alberta Elaine White appeals from the district court's order deny-
ing her 28 U.S.C. § 2255 (1988) motion. We find that the district
court properly dismissed each of White's claims that it addressed.
However, because we find that material issues of fact exist as to
whether White received effective assistance of counsel regarding her
appeal, a claim overlooked by the district court, we grant a certificate
of appealability, affirm the court's order in part, vacate the order in
part, and remand for further proceedings.
White pled guilty to conspiracy to possess with intent to distribute
and to distribute cocaine. She then sought relief under § 2255 raising
numerous claims. The Government responded and moved for sum-
mary judgment but did not file any affidavits in support of its motion.
The district court granted summary judgment and dismissed White's
motion, without addressing White's claim that her counsel failed to
perfect her appeal. White timely appealed.
We find that, viewing the record in the light most favorable to
White, a material dispute exists regarding White's claim that her
counsel failed to file a notice of appeal. White alleged, in her verified
petition, that her counsel did not file a notice of appeal after she
requested that one be filed. White's assertions are unopposed. The
Government focused its motion for summary judgment on other
issues and did not file an affidavit from White's trial counsel.
White's uncontradicted assertions, if true, would entitle White to
relief in the form of a belated appeal. United States v. Peak, 992 F.2d
39, 42 (4th Cir. 1993). We therefore vacate the portion of the order
of the district court granting summary judgment to the Government
on White's claim of ineffective assistance of counsel for failing to file
a requested notice of appeal. We remand to the district court for the
limited purpose of addressing this claim.
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We affirm the remainder of the order on the reasoning of the dis-
trict court. United States v. White, Nos. CR-89-214; CA-93-2722-0-
19-BC (D.S.C. Oct. 18, 1995). 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.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
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