United States v. McClaren ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-8591
WENLEY MCCLAREN,
Defendant-Appellant.
On Petition for Rehearing and
Suggestion for Rehearing in Banc.
Submitted: July 16, 1996
Decided: May 1, 1997
Before RUSSELL, LUTTIG, and WILLIAMS, Circuit Judges.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
Wenley McClaren, Appellant Pro Se. Thomas Oliver Mucklow,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellant Wenley McClaren appealed from a district court order
that, after a hearing, denied his 28 U.S.C. § 2255 (1988), amended by
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214, motion in which he alleged that he received
ineffective assistance of counsel in various ways during his criminal
trial. This Court previously dismissed the appeal on the reasoning of
the district court. After obtaining a response from the Government,
we now grant McClaren's timely petition for rehearing and deny his
request for rehearing en banc. Because the district court did not
appoint counsel to represent McClaren at the evidentiary hearing on
his habeas motion, we vacate the district court's order, and remand
the case for the court to conduct another evidentiary hearing in which
Appellant is represented by appointed counsel.
Though there is no constitutional right to counsel in § 2255 pro-
ceedings, "there is a statutory right to appointed counsel in a section
2255 proceeding under Rule 8, 28 U.S.C. § 2255, if an evidentiary
hearing is required." United States v. Vasquez, 7 F.3d 81, 83 (5th Cir.
1993). Other circuits that have addressed the issue have also so held.
See United States v. Duarte-Higareda, 68 F.3d 369, 370 (9th Cir.
1995); Rauter v. United States, 871 F.2d 693, 697 (7th Cir. 1989).
Such error is not susceptible to harmless error review. Vasquez, 7
F.3d at 85. Neither has McClaren waived consideration of the issue
on appeal. He twice requested counsel at the evidentiary hearing, and
his requests were denied. He also noted the issue in his docketing
statement and informal brief in this court.
For these reasons, we vacate the district court's order and remand
the case with instructions that the court hold another evidentiary hear-
ing on McClaren's § 2255 motion at which he is represented by
appointed counsel. 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 AND REMANDED
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