UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RICHARD PADGETT,
Petitioner-Appellant,

v.

WILLIE WELDON, Warden of Leiber
                                                                     No. 98-7422
Correctional Institution; CHARLES M.
CONDON, Attorney General of the
State of South Carolina,
Respondents-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Henry M. Herlong, Jr., District Judge.
(CA-97-3922-4-20BE)

Submitted: February 9, 1999

Decided: April 22, 1999

Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

Richard Padgett, Appellant Pro Se. Donald John Zelenka, Chief Dep-
uty Attorney General, Columbia, South Carolina, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Richard Padgett appeals the district court's order adopting the mag-
istrate judge's recommendation to deny his request for habeas corpus
relief under 28 U.S.C.A. § 2254 (West 1994 & Supp. 1998). In deny-
ing relief, the district court found all of Padgett's claims procedurally
barred. We agree with Padgett that the district court erred in finding
two of his ineffective assistance claims procedurally barred. Padgett
asserted that his counsel was ineffective due to a conflict of interest
and due to his failure to more vigorously defend him after a witness
who incriminated him in a statement to police recanted that statement
in a letter to counsel.

The district court found that the state supreme court denied these
claims on procedural grounds that adequately and independently sup-
ported the denials. Specifically, the court noted the state court's com-
ment that the claims were not properly preserved for appellate review
because the state post-conviction relief (PCR) judge did not rule on
the claims, even though they were raised in Padgett's post-conviction
relief application. Although the state court went on to deny the claims
on the merits, the district court found that the state court's reliance on
procedural bar obviated the need for federal review under the ade-
quate and independent state ground doctrine. See Harris v. Reed, 489
U.S. 255, 262 (1989).

We read the state court's opinion in Padgett v. State, 484 S.E. 2d
101 (S.C. 1997), differently from the district court. Although the court
stated that the ineffective assistance claims at issue were not properly
preserved for appellate review, the court cited for this proposition its
own decision in Pruitt v. State, 423 S.E. 2d 127 (S.C. 1992), where
the court held that a PCR judge's failure to consider claims raised in
a prisoner's post-conviction relief application requires remand for
consideration of the claims before they are appropriately considered

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by the appellate court. Id. at 128. The court's citation to Pruitt sug-
gests that it was noting a procedural deficiency but not a procedural
bar. This construction is further supported by the fact that the court
went on to address the claims on the merits. Moreover, even had the
state court applied a procedural bar in this case, it would not be ade-
quate to support the judgment, because the state possessed no legiti-
mate interest in barring claims based on an error by the PCR judge
rather than the litigant, and in this case the inaction of the PCR judge
rather than Padgett caused the procedural deficiency. See Osborne v.
Ohio, 495 U.S. 103, 124 (1990) (finding that state possessed no legiti-
mate interest in denying petitioner opportunity to plead with more
particularity).

We therefore grant a certificate of appealability and vacate the
order of the district court and remand for consideration of the identi-
fied ineffective assistance claims on the merits. In all other respects,
the order of the district court is affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED IN PART, VACATED IN PART,
AND REMANDED

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