US v. Larry Lingenfelter

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:10-cr-00153-RAJ-TEM-1, 2:14-cv-00575-RAJ Copies to all parties and the district court/agency. [1000065436]. Mailed to: L. Lingenfelter. [16-7339]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-7339

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY EUGENE LINGENFELTER,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:10-cr-00153-RAJ-TEM-1; 2:14-cv-00575-RAJ)

Submitted:

March 28, 2017

Decided:

April 20, 2017

Before GREGORY, Chief Judge, and KING and AGEE, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Jeremy Brian Gordon, JEREMY GORDON, PLLC, Mansfield, Texas, for
Appellant.
Stephen Westley Haynie, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Larry
court’s

Eugene

order

untimely.
§ 2255

Lingenfelter

denying

his

28

seeks
U.S.C.

to

appeal

§ 2255

the

(2012)

district
motion

as

Lingenfelter may not appeal from the dismissal of his

motion

unless

a

circuit

certificate of appealability.

justice

or

judge

issues

a

28 U.S.C. § 2253(c)(1)(B) (2012).

A certificate of appealability will not issue absent “a substantial
showing of the denial of a constitutional right.”
§ 2253(c)(2) (2012).

28 U.S.C.

Where the district court denies relief on

the merits, a prisoner satisfies this standard by demonstrating
“that

reasonable

assessment

of

the

jurists

would

constitutional

find
claims

the

district

debatable

or

court’s
wrong.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003).

Where, as here, the

district court denies relief on procedural grounds, the prisoner
must show that jurists of reason would find debatable whether the
motion states a valid claim of the denial of a constitutional
right, and whether the district court’s procedural ruling was
correct.
We

Slack, 529 U.S. at 484-85.
affirmed

Lingenfelter’s

conviction

on

direct

appeal.

United States v. Lingenfelter, 473 F. App’x 303 (4th Cir. 2012)
(unpublished), cert. denied 134 S. Ct. 534 (2013).

The Supreme

Court denied Lingenfelter’s petition for a writ of certiorari on
November 4, 2013, and Lingenfelter timely filed the instant motion
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on October 31, 2014.

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See 28 U.S.C. § 2255(f)(1).

Accordingly, we

find that jurists of reason would find debatable the district
court’s dismissal of Lingenfelter’s motion on timeliness grounds.
Lingenfelter’s

§ 2255

motion

ineffective assistance of counsel.

advanced

two

claims

of

First, Lingenfelter alleged

that his trial counsel failed to inform him of a favorable plea
offer that the Government had memorialized in an email to his
counsel.

“[A]s a general rule, defense counsel has the duty to

communicate formal offers from the prosecution to accept a plea on
terms

and

conditions

that

may

be

favorable

Missouri v. Frye, 566 U.S. 133, 145 (2012).

to

the

accused.”

Because Lingenfelter

contended that his counsel did not perform up to this standard, we
conclude that jurists of reason would find debatable whether he
stated a violation of his Sixth Amendment right to counsel.
Lingenfelter also challenged his counsel’s decision not to
introduce certain evidence at trial.

However, in his counseled

appellate brief, Lingenfelter merely notes that this claim was
made below without offering any argument as to its debatability.
Thus, he has waived appellate review of this claim. See Jackson v.
Lightsey, 775 F.3d 170, 177 (4th Cir. 2014).
Accordingly, we grant a certificate of appealability on the
issue

of

whether

Lingenfelter

was

deprived

of

the

effective

assistance of counsel through his counsel’s alleged failure to
apprise

him

of

a

plea

offer,
3

and

deny

a

certificate

of

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appealability on the assertion of ineffective assistance based on
counsel’s decision not to introduce certain evidence at trial.
vacate

the

proceedings. *

district

court’s

order

and

remand

for

We

further

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials
before

this

court

and

argument

would

not

aid

the

decisional

process.
VACATED AND REMANDED

*

By this disposition, we express no view on the merits of
Lingenfelter’s claim.
4