United States v. Luis Tejeda-Ramirez , 436 F. App'x 172 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7489
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS TEJEDA-RAMIREZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:06-cr-00393-HMH-1)
Submitted: April 21, 2011 Decided: June 28, 2011
Before MOTZ, KING, and DAVIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Luis Tejeda-Ramirez, Appellant Pro Se. Alan Lance Crick,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Tejeda-Ramirez appeals a district court order
finding that his appellate counsel timely informed him of his
right to file a petition for writ of certiorari. Because
Tejeda-Ramirez was not given an opportunity to respond to
appellate counsel’s affidavit, we vacate the court’s order and
remand.
In United States v. Tejeda-Ramirez, No. 10-6188, 2010
WL 2182187 (4th Cir. June 2, 2010) (unpublished), we granted a
certificate of appealability on the issue of whether Tejeda-
Ramirez’s appellate counsel failed to timely inform him in
writing of his right to file a petition for writ of certiorari
after receiving an adverse decision from this court. We vacated
the district court’s order in part, and remanded for the purpose
of having the court make factual findings regarding this issue. *
On remand, the district court directed the Government
to submit an affidavit by Tejeda-Ramirez’s appellate counsel
responding to the issue of whether he failed to timely inform
Tejeda-Ramirez of his right to file a petition for writ of
certiorari. On August 25, 2010, the Government filed a
response. Attached to the response was counsel’s affidavit and
*
We denied a certificate of appealability as to the
remaining issues.
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copies of two letters addressed to Tejeda-Ramirez from counsel.
The first letter was dated December 20, 2007, and the second was
dated January 18, 2008. Both letters were addressed to Tejeda-
Ramirez at the FCI in Yazoo City, Mississippi.
In the letter dated January 18, 2008, counsel informed
Tejeda-Ramirez that he must advise counsel in writing of his
desire to petition the United States Supreme Court for a writ of
certiorari. The letter further informed Tejeda-Ramirez that he
must also indicate the grounds for seeking review. Counsel
further indicated that if he agreed that the grounds were valid,
he had an obligation to prepare such a petition and that if he
did not agree, he would file a motion in this court to withdraw.
Counsel also indicated that the petition must be filed prior to
March 1, 2008.
By order entered August 27, 2010, or two days after
the Government filed its response, the district court noted that
the Government submitted counsel’s affidavit and copies of the
two letters timely informing Tejeda-Ramirez of his right to file
a petition for writ of certiorari. Based on the letters, the
court found that counsel fulfilled his duties under the CJA and
that he was not ineffective in this regard. Given the short
period of time between the Government’s filing and the court’s
order, Tejeda-Ramirez did not file a response to counsel’s
affidavit.
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In a similar situation, when a party moves for summary
judgment against a pro se party, this court requires that the
pro se party be given notice of the opportunity to file a
counter-affidavit or other appropriate materials and is informed
that failure to file such materials could result in dismissal.
See Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975). We
conclude that in this instance, Tejeda-Ramirez should have been
given an opportunity to respond to appellate counsel’s
affidavit. Accordingly, we vacate the district court’s order
and remand. On remand, the district court should give Tejeda-
Ramirez notice that he may file an affidavit or other
appropriate materials and that the failure to file such a
response could result in dismissal of the action. 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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