US v. Luther Robinson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion for other relief [998553780-2]; denying for certificate of appealability, proceed in forma pauperis; denying updating certificate of appealability status, updating fee code Originating case number: 1:06-cr-00119-JAB-1,1:07-cv-00691-JAB-WWD Copies to all parties and the district court/agency. [998597884]. Mailed to: Luther Robinson. [09-6729]

Appeal: 09-6729

Document: 24

Date Filed: 05/25/2011

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-6729

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUTHER LEE ROBINSON,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham.
James A. Beaty, Jr.,
Chief District Judge.
(1:06-cr-00119-JAB-1; 1:07-cv-00691-JABWWD)

Submitted:

April 29, 2011

Decided:

May 25, 2011

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Dismissed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Luther Lee Robinson, Appellant Pro Se.
Graham Tod Green,
Assistant United States Attorney, Winston-Salem, North Carolina;
Angela
Hewlett
Miller,
Assistant
United
States
Attorney,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 09-6729

Document: 24

Date Filed: 05/25/2011

Page: 2 of 3

PER CURIAM:
Luther

Lee

Robinson

seeks

to

appeal

the

district

court’s order denying relief on his 28 U.S.C.A. § 2255 (West
Supp. 2010) motion.
district

court’s

We dismiss the appeal in part, vacate the
order

in

part,

and

remand

for

further

proceedings.
We previously granted a certificate of appealability
on the issue of whether an evidentiary hearing was necessary in
the district court to resolve Robinson’s claim that counsel’s
failure to note an appeal from the criminal judgment amounted to
ineffective assistance, deferring consideration of the remainder
of Robinson’s appeal.

Conceding that an evidentiary hearing was

necessary, the Government has moved to remand the case to the
district court.
the

underlying

court’s

order

Without expressing an opinion on the merits of
claim,

we

denying

vacate

the

Robinson’s

portion
claim

of

the

that

district

counsel

was

ineffective for failing to file a notice of appeal from the
criminal judgment, grant the Government’s motion, and remand for
an evidentiary hearing to resolve this issue.
Robinson
brief;

namely,

asserted

that

one

counsel

other

was

claim

in

ineffective

his

for

informal

failing

to

research, prior to sentencing, appeals pending in the Fourth
Circuit

that

might

impact

his

case.

The

previously-granted

certificate of appealability did not include this issue.
2

We

Appeal: 09-6729

Document: 24

Date Filed: 05/25/2011

Page: 3 of 3

decline to review the claim because Robinson did not raise it in
the district court.

See Muth v. United States, 1 F.3d 246, 250

(4th Cir. 1993) (stating that issues raised for first time on
appeal will not be considered absent a showing of plain error or
a fundamental miscarriage of justice).
Accordingly,
court’s

order

ineffective

we

denying

for

vacate

the

Robinson’s

failing

to

note

portion

of

claim

that

an

appeal,

the

district

counsel

was

grant

the

Government’s motion to remand, and remand to the district court
for an evidentiary hearing to resolve this claim.
remaining

claim,

we

deny

a

dismiss in part the appeal.

certificate

of

As to the

appealability

and

We grant Robinson leave to proceed

in forma pauperis and dispense with oral argument because the
facts

and

materials

legal
before

contentions

are

adequately

the

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
DISMISSED IN PART,
VACATED IN PART,
AND REMANDED

3