United States v. Joseph

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6460
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRUCE OKELLO JOSEPH, a/k/a Okello Bruce Joseph,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
Senior District Judge. (4:02-cr-00060-H-4; 4:07-cv-00126-H)
Submitted: October 5, 2009 Decided: October 23, 2009
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Vacated in part and remanded; dismissed in part by unpublished
per curiam opinion.
Bruce Okello Joseph, Appellant Pro Se. Rudolf A. Renfer, Jr.,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bruce Okello Joseph seeks to appeal the district
court’s order denying his 28 U.S.C.A. § 2255 (West Supp. 2009)
motion. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2006). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or
wrong and that any dispositive procedural ruling by the district
court is likewise debatable. Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We grant a
certificate of appealability as to one issue, vacate the
district court’s order in part and remand for further
proceedings and we deny a certificate of appealability as to
Joseph’s other issue and dismiss the appeal in part.
Joseph claims appellate counsel failed in his
obligation to timely notify him of his right to file a petition
for writ of certiorari after receiving an adverse decision from
this court in his appeal from his criminal judgment. In support
of his claim, Joseph submitted an affidavit prepared by him and
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a letter from his appointed counsel’s law firm providing him
with a copy of the court’s decision in United States v. Staine,
No. 05-4717(L), 2006 WL 1766122 (4th Cir. June 21, 2006)
(unpublished). The letter is dated February 9, 2007, nearly
eight months after this court’s decision.
In Wilkins v. United States, 441 U.S. 468 (1979), the
Supreme Court provided relief, under the Criminal Justice Act,
for an out-of-time pro se petitioner whose counsel never filed a
petition for certiorari despite assurances from his counsel that
the petition was filed. It stated that “the Courts of Appeals
for all of the Circuits provide in their rules or in plans
adopted pursuant to the Criminal Justice Act that a court-
appointed lawyer must, if his client wishes to seek further
review in this court, represent him in filing a petition for
certiorari.” Wilkins, 441 U.S. at 469.
This court’s Plan In Implementation of the Criminal
Justice Act states in relevant part:
If the judgment of this court is adverse to the
defendant, counsel shall inform the defendant, in
writing, of his right to petition the Supreme Court
for a writ of certiorari. If the defendant, in
writing, so requests and in counsel’s considered
judgment there are grounds for seeking Supreme Court
review, counsel shall prepare and file a timely
petition for such a writ and transmit a copy to the
defendant.
Plan, Part V, § 2.
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In Proffitt v. United States, 549 F.2d 910, 912 (4th
Cir. 1976), this court vacated the district court’s order
dismissing a § 2255 motion that alleged counsel’s failure to
consult the defendant and remanded the case for the purpose of
an evidentiary hearing because the district court incorrectly
found the appointed counsel had no duty to notify the defendant
of the result of his appeal before this court and of the right
to seek discretionary review from the Supreme Court.
While the district court in this case correctly found
it was without authority to order an appropriate remedy, such as
recalling the mandate and reissuing this court’s opinion, it can
make factual findings in reference to Joseph’s claim. Thus, we
grant a certificate of appealability on the issue of whether
Joseph’s appellate counsel failed to timely inform him in
writing of his right to file a petition for writ of certiorari
after receiving an adverse decision from this court. If the
district court concludes Joseph’s counsel failed in his
obligations in this regard, Joseph may file a motion in this
court to recall the mandate, reissue the court’s judgment and
appoint counsel to assist in preparing a petition for writ of
certiorari.
As for Joseph’s claim he was denied effective
assistance of counsel with respect to him being sentenced based
on the jury finding that he conspired to distribute or possess
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with intent to distribute more than fifty grams of crack
cocaine, we have independently reviewed the record and conclude
Joseph has not made the requisite showing. Accordingly, we deny
a certificate of appealability on this issue.
Accordingly, we grant a certificate of appealability
on the issue of whether Joseph’s appellate counsel failed to
timely inform him in writing of his right to file a petition for
writ of certiorari after receiving an adverse decision from this
court, vacate the district court’s order in part and remand for
the purpose of having the court make factual findings regarding
this issue. We deny a certificate of appealability with respect
to Joseph’s remaining issue and dismiss the appeal in part. 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 IN PART AND REMANDED;
DISMISSED IN PART
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