US v. Smith

Filing 920081119

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-6358

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. ROBERT JARED SMITH, a/k/a J-Dog, Defendant ­ Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, Chief District Judge. (2:99-cr-00198-3; 2:05-cv-00431)

Argued:

September 26, 2008

Decided:

November 19, 2008

Before MICHAEL and MOTZ, Circuit Judges, and James C. DEVER III, United States District Judge for the Eastern District of North Carolina, sitting by designation.

Vacated by unpublished per curiam opinion.

ARGUED: Susan Hills Nelson, Student Counsel, CHARLESTON SCHOOL OF LAW, Charleston, South Carolina, for Appellant. Miller A. Bushong, III, OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee. ON BRIEF: Margaret M. Lawton, CHARLESTON SCHOOL OF LAW, Charleston, South Carolina, for Appellant. Charles T. Miller, United States Attorney, John J. Frail, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM: Robert Jared Smith appeals from the judgment of the United States District Court for the Southern District of West Virginia denying his motion for post-conviction relief under 28 U.S.C. § 2255. Smith claims in part that his appellate counsel

failed to carry out his request to file a petition for a writ of certiorari to the Supreme Court of the United States. On appeal

we construe Smith's § 2255 motion as a motion to recall our mandate. We grant the motion, which allows us to vacate and This for

reenter our earlier judgment affirming Smith's sentence. relief will enable Smith to file a timely petition

certiorari.

I. Smith was tried and convicted on July 13, 2000, of conspiracy to distribute cocaine base and aiding and abetting possession with intent to distribute cocaine base. See 21

U.S.C. § 841(a)(1); 18 U.S.C. § 2.

At sentencing the district

court enhanced Smith's offense level by four levels based on findings that Smith had played a leadership role in the original conspiracy. Smith was sentenced within the guidelines range to

a life sentence on the conspiracy count and a concurrent twentyyear sentence for the aiding and abetting count. On appeal we

affirmed Smith's convictions, but remanded after concluding that 3

the district court had erred by applying the leadership role enhancement. At Smith's second sentencing the district court

resentenced him without using the leadership role enhancement. After calculating a guidelines range of 324 to 405 months, the district court resentenced Smith to 405 months' imprisonment on the conspiracy count and a concurrent sentence of 240 months on the aiding and abetting count. Smith appealed his new sentence, and pursuant to the provisions of the Criminal Justice Act (CJA), 18 U.S.C. § 3006A, we appointed counsel (hereafter, "appellate counsel" or

"counsel") to represent him in the appeal.

Appellate counsel

filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), arguing that the evidence was We rule insufficient affirmed precluded the us to new from

support sentence

Smith's and

conspiracy that

conviction. mandate

noted

the

considering the evidentiary issue.

United States v. Smith, 98 Consistent with

Fed. App'x 962 (4th Cir. 2004) (unpublished).

the CJA, our opinion, filed June 8, 2004, instructed appellate counsel to inform Smith in writing of his right to petition the Supreme Court of the United States for further review. opinion also advised counsel that "If Smith requests Our a

that

petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court to

withdraw from representation."

J.A. 68. 4

In a letter dated June 25, 2004, appellate counsel informed Smith that the Fourth Circuit had denied his appeal and wrote, "You have a right to have a Petition for Certiorari filed with the United States Supreme Court, and I will do that for you if you request." J.A. 114. The last sentence of counsel's

letter repeated her offer: to file the Petition." written Supreme postscript Court had in Id. which

"Please let me know if you want me The letter also included a handcounsel informed Smith that the

"just

found

Washington

State's

sentencing

guidelines unconstitutional. petition yet please

If you haven't filed your habeas that issue re: the Federal

include Id.

Sentencing Guidelines."

Appellate counsel was apparently

referring to Blakely v. Washington, 542 U.S. 296 (2004), which the Supreme Court decided on June 24, 2004, the day before her letter to Smith. Smith says in his affidavit that he talked with

appellate counsel on the telephone shortly after receiving her June 25, 2004, letter and requested that she file a petition for a writ of certiorari. file the petition. Smith also says that counsel agreed to

Counsel, in her affidavit, says that she

remembers having a conversation with Smith, but she no longer has her notes from the conversation. (Counsel did not address

the key issue, that is, whether she had been asked to file a petition for certiorari. She admitted, however, that she did 5

not move to withdraw as counsel.)

Two months after making his

request, Smith called counsel to follow up, but he was unable to reach her. The affidavits prompted the government to concede

that counsel, "after being requested to do so . . . failed to prepare for filing in the Supreme Court a timely Petition for a Writ of Certiorari." J.A. 119.

Smith filed in district court a pro se motion under 28 U.S.C. § 2255, arguing that he should be resentenced pursuant

to United States v. Booker, 543 U.S. 220 (2005), and that he was deprived of the effective assistance of appellate counsel

because his counsel failed to file a petition for certiorari, as requested. that Smith The district court denied Smith's petition, holding did not have a constitutional right to have his

appellate counsel file a petition for certiorari in the Supreme Court. Smith appealed the dismissal, and this court granted a of appealability on the question of whether

certificate

counsel's failure to file a certiorari petition, as requested, violates the Sixth Amendment right to counsel.

II. We first consider Smith's alternative argument. He

contends that appellate counsel's representation after the entry of judgment in his second appeal violated his rights under the

6

Criminal Justice Act, 18 U.S.C. § 3006A.

This court's Plan In

Implementation of the Criminal Justice Act (CJA Plan) provides: Appellate Counsel: Every attorney . . . who represents a defendant in this court shall continue to represent his client after termination of the appeal unless relieved of further responsibility by this court or the Supreme Court. Where counsel has not been relieved: 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. Thereafter, unless otherwise instructed by the Supreme Court or its clerk, or unless any applicable rule, order or plan of the Supreme Court shall otherwise provide, counsel shall take whatever further steps are necessary to protect the rights of the defendant, until the petition is granted or denied. If the appellant requests that a petition for writ of certiorari be filed but counsel believes that such a petition would be frivolous, counsel may file a motion to withdraw with this court wherein counsel requests to be relieved of the responsibility of filing a petition for writ of certiorari. The motion must reflect that a copy was served on the client. CJA Plan, Part V, § 2; see also 18 U.S.C. § 3006A. In this And,

case, appellate counsel did not file a motion to withdraw.

as the government concedes, counsel failed to file a petition for certiorari after being requested to do so by Smith. These

circumstances resulted in a violation of Smith's rights under

7

this court's CJA Plan.

We must therefore determine what remedy,

if any, is available to Smith. Smith points out that Wilkins v. United States, 441 U.S. 468 (1979) (per curiam), suggests the remedy. In Wilkins,

as in the case before us, court-appointed counsel failed to file a petition for certiorari after being requested to do so. at 468. Id.

The Court first pointed to the CJA as the basis for

relief, summarizing a defendant's right under the CJA to the assistance of counsel in seeking certiorari. When counsel has

failed to fulfill its CJA obligations with respect to the matter of certiorari, the Supreme Court noted that a circuit court

could vacate and reenter judgment to permit a defendant to file a timely petition for certiorari: Had the petitioner presented his dilemma to the Court of Appeals by way of a motion for the appointment of counsel to assist him in seeking review here, the court then could have vacated its judgment affirming the convictions and entered a new one, so that this petitioner, with the assistance of counsel, could file a timely petition for certiorari. Wilkins, 441 U.S. at 469; see also Schreiner v. United States, 404 U.S. 67, to of 67 (1971) of (per appeals to curiam) for (invoking of the CJA and and

remanding

court

reentry

judgment review

appointment

counsel

assist

with

seeking

in the

Supreme Court). To vacate and reenter the judgment in Smith's case, we must recall our mandate, an action 8 that we take only in

extraordinary circumstances.

See Calderon v. Thompson, 523 U.S.

538, 549-50 (1998); Alphin v. Henson, 552 F.2d 1033, 1035 (4th Cir. 1977) (per curiam). We have previously recalled our mandate and reentered judgment in a case similar to this one. In United States v.

Masters, No. 91-6100, 1992 WL 232466, at *3 (4th Cir. Sept. 22, 1992) (unpublished), we determined that appellate counsel had violated his duty under the CJA Plan to file a petition for certiorari requested by his client. relief vacated requested the under § 2255, but, We denied the collateral relying judgment on to Wilkins, enable Id. we the Other

mandate

and

reentered

defendant to file a timely petition for certiorari. courts of appeals have followed the same course. Nnebe v. United States, 534 F.3d 87, 91 (2d

See, e.g., Cir. 2008)

(recalling the mandate and reentering judgment so that timely petition for certiorari might be filed on behalf of defendant); United States v. Howell, 37 F.3d 1207, 1210 (7th Cir. 1994) (same); United States v. James, 990 F.2d 804, 805 (5th Cir. 1993) (same). Smith has not filed a motion to recall the mandate. Rather, under he filed a pro se motion he for post-conviction the his denial pro se relief that

28

U.S.C. We

§ 2255, of

and

appeals construe

of

motion. liberally.

may,

course,

filings

See Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 9

2002)

("[T]he

long-standing

practice

is

to

construe

pro

se

pleadings liberally."); see also Hughes v. Rowe, 449 U.S. 5, 9 (1980) (holding that complaints drafted by pro se prisoners are held to "less stringent standards than formal pleadings drafted by lawyers") (quoting Haines v. Kerner, 404 U.S. 519, 520

(1972)).

We have, on occasion, construed a § 2255 petition as a See Masters, 976 F.2d at *3; see

motion to recall the mandate.

also United States v. Capers, 182 Fed. App'x 207, 208 n.* (4th Cir. 2006) (per curiam) (noting that the court may construe a § 2255 motion as a motion to recall a the mandate And, where other

extraordinary

circumstances

warrant

recall).

courts of appeals have done the same. F.3d at 91; Howell, 37 F.3d at 1210.

See, e.g., Nnebe, 534

In this case Smith was deprived of his CJA right to counsel's assistance in filing a petition for certiorari, if "in counsel's considered judgment there [were] grounds for seeking Supreme Court review." is sufficiently CJA Plan, Part V, § 2. to warrant This deprivation treatment of

extraordinary

our

Smith's § 2255 motion as a motion to recall the mandate, which we grant in order to provide appropriate relief. (The

government acknowledged at oral argument that it did not object to this resolution.) Accordingly, an order will be entered recalling our mandate and vacating and reentering judgment in United States v. 10

Smith, No. 02-4928 (4th Cir. June 8, 2004).

Counsel will be

appointed to assist Smith (in accordance with this court's CJA Plan) with respect to the matter of a petition for certiorari to the Supreme Court of the United States. Because we treat Smith's § 2255 motion as a motion to recall the mandate, we vacate the district court's order

dismissing the § 2255 motion. * VACATED

In light of the relief granted, it is not necessary for us to reach the merits of the district court's decision.

*

11