United States v. Harris ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-7476
JAMES OSCAR HARRIS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-96-345-AW, CA-99-1276-AW)
Submitted: March 31, 2000
Decided: June 27, 2000
Before MURNAGHAN, NIEMEYER, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Vacated and remanded in part and dismissed in part by unpublished
per curiam opinion.
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COUNSEL
James Oscar Harris, Appellant Pro Se. Lynne Ann Battaglia, United
States Attorney, Baltimore, Maryland; Odessa Palmer Jackson,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Mary-
land, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
James Oscar Harris appeals the district court's denial of his motion
filed under 28 U.S.C.A. § 2255 (West Supp. 1999). The record dis-
closes that following a response from the Government, the district
court ordered an evidentiary hearing. Harris, proceeding in forma
pauperis, requested and was denied counsel at the hearing. On appeal,
Harris argues that this denial constitutes a violation of Rule 8(c) of
the Rules Governing § 2255 Proceedings.
"[T]here 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);
see also United States v. Duarte-Higareda, 68 F.3d 369, 370 (9th Cir.
1995); Swazo v. Wyoming Dep't of Corrections State Penitentiary
Warden, 23 F.3d 332, 333-34 (10th Cir. 1994); Rauter v. United
States, 871 F.2d 693, 695-97 (7th Cir. 1989). Such error is not suscep-
tible to harmless error review. See Vasquez, 7 F.3d at 85. Because we
find that Harris was entitled to counsel at his evidentiary hearing, we
grant a certificate of appealability as to this claim.
Harris also raised a Fourth Amendment claim, alleging that the dis-
trict court erred in denying his motion to suppress evidence seized
during the FBI search of his apartment. Although the district court did
not address this claim in its order, we find that the transcript of the
trial court's suppression hearing does not reveal a substantial showing
of a denial of a constitutional right. See 28 U.S.C.A. § 2253(c) (West
Supp. 1999). We therefore deny a certificate of appealability and dis-
miss the appeal as to this issue.
Accordingly, we grant a certificate of appealability only as to
whether Harris was deprived of effective assistance of counsel when
his trial counsel did not note a requested appeal. We vacate the dis-
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trict court's order as to that issue alone and remand the case with
instructions that the court hold another evidentiary hearing on Harris'
§ 2255 motion at which he is represented by appointed counsel. We
deny a certificate of appealability as to Harris' Fourth Amendment
claim and dismiss the appeal as to this claim. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
VACATED AND REMANDED IN PART;
DISMISSED IN PART
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