United States v. Opande , 210 F. App'x 262 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7378
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GEORGE OGUENO OPANDE,
Defendant - Appellant.
No. 05-7947
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GEORGE OGUENO OPANDE,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CR-04-216; CA-05-748)
Submitted: November 8, 2006 Decided: December 20, 2006
Before WILKINSON, KING, and SHEDD, Circuit Judges.
No. 05-7378 dismissed; No. 05-7947 vacated and remanded by
unpublished per curiam opinion.
George Ogueno Opande, Appellant Pro Se. Lawrence Joseph Leiser,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, George Ogueno Opande seeks
to appeal the district court’s orders denying relief on his 28
U.S.C. § 2255 (2000) motion and denying his motion for
reconsideration. We issued a certificate of appealability on the
district court’s failure to appoint counsel for the evidentiary
hearing. See Rule 8(c) of the Rules Governing Section 2255
Proceedings.
Under Rule 8(c) of the Rules Governing Section 2255
Proceedings, “[i]f an evidentiary hearing is required, the judge
must appoint an attorney to represent a moving party who qualifies
to have counsel appointed under 18 U.S.C. § 3006A at any stage of
the proceeding.” The provisions of this rule are mandatory and
clear. See also Advisory Committee note 8(c) to Rule 8 of the
Rules Governing Section 2254 Cases (stating that “[a]ppointment of
counsel at [the hearing] stage is mandatory”).* Opande is
proceeding in forma pauperis and would qualify for counsel. See
§ 3006A(a)(1), (2)(B). The failure to appoint counsel results in
a reversal. See United States v. Vasquez, 7 F.3d 81, 83-84 (5th
Cir. 1993). Accordingly, in No. 05-7947, we vacate the March 3,
2006 order denying the motion for reconsideration and remand to the
*
Although this clarification appears in the Advisory Committee
notes for the Rules Governing § 2254 Cases, Advisory Committee Note
8(c) for the Rules Governing § 2255 Proceedings refers to the notes
contained in the § 2254 Rules.
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district court to appoint counsel and hold a new evidentiary
hearing.
In No. 05-7378, Opande seeks to appeal the district court
order denying relief on his claims that his conviction was
“manufactured” by law enforcement, that he was the victim of
entrapment and improper inducement, that he was due a downward
departure because he was entrapped and because he was infected with
tuberculosis while being detained.
The district court’s order is not appealable unless a
circuit justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1) (2000). A certificate of appealability will
not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner
satisfies this standard by demonstrating that reasonable jurists
would find that any assessment of the constitutional claims by the
district court is debatable or wrong and that any dispositive
procedural ruling by the district court is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-
84 (4th Cir. 2001). We have independently reviewed the record and
conclude Opande has not made the requisite showing. Accordingly,
in No. 05-7378, we deny a certificate of appealability and dismiss
the appeal. In No. 05-7947, we vacate the March 3, 2006 order and
remand to the district court to appoint counsel and to hold a new
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evidentiary hearing. 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.
No. 05-7378 DISMISSED
No. 05-7947 VACATED AND REMANDED
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