United States v. Killian , 22 F. App'x 300 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-7470
LEROY KILLIAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-93-74, CR-93-80, CA-96-517-3-MU)
Submitted: November 26, 2001
Decided: December 20, 2001
Before WILKINS, NIEMEYER, and MOTZ, Circuit Judges.
Vacated in part and remanded by unpublished per curiam opinion.
COUNSEL
Leroy Killian, Appellant Pro Se. Brian Lee Whisler, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. KILLIAN
OPINION
PER CURIAM:
Leroy Killian seeks to appeal the district court’s order denying his
motion filed under 28 U.S.C.A. § 2255 (West Supp. 2001). Killian
filed a habeas motion under § 2255 on December 6, 1996. He claimed
ineffective assistance of counsel for his attorney’s alleged failures to
perfect a direct appeal, to inform Killian that he was subject to a
career offender enhancement, and to object to the Pre-Sentencing
Report. On March 7, 2001, the district court found Killian raised a
legitimate ineffective assistance of counsel claim as to his attorney’s
failure to perfect a direct appeal pursuant to United States v. Peak,
992 F.2d 39, 42 (4th Cir. 1993). The court denied the remainder of
Killian’s ineffective assistance claims. It vacated Killian’s original
judgment and entered a new judgment to permit Killian a renewed
opportunity to seek a direct appeal.
Although the district court granted Killian’s § 2255 motion insofar
as it entered a new judgment, it denied the remainder of Killian’s
habeas claims. Because Killian has never had a direct appeal, how-
ever, taking further action on Killian’s motion beyond granting his
Peak claim was inappropriate. The district court should have dis-
missed the remaining claims without prejudice to Killian’s right to
file another habeas motion, if necessary, after a direct appeal. More-
over, as a criminal defendant has a right to counsel throughout the
direct appeal, see Douglas v. California, 372 U.S. 353, 357-58
(1963), the district court should have appointed counsel for Killian
when it made its ruling. Accordingly, we grant a certificate of
appealability and vacate the district court’s March 7 order to the
extent it denied Killian’s § 2255 claims other than his Peak claim, and
remand with instructions for the district court to dismiss the non-Peak
claims without prejudice. The district court is further instructed to
appoint counsel for Killian to assist him with the pursuit of his direct
appeal. 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 WITH INSTRUCTIONS