                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-6188


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; 6:10-cv-70134-HMH)


Submitted:   May 7, 2010                   Decided:   June 2, 2010


Before MOTZ, KING, and DAVIS, Circuit Judges.


Vacated in part and remanded; dismissed in part by unpublished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Unpublished opinions are not binding precedent in this circuit.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        seeks       to    appeal       the   district

court’s order denying relief on his 28 U.S.C.A. § 2255 (West

Supp.    2009)   motion.      The    order    is     not    appealable        unless   a

circuit justice or judge issues a certificate of appealability.

28 U.S.C. § 2253(c)(1) (2006).               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) (2006).                  When the

district court denies relief on the merits, a prisoner satisfies

this    standard   by    demonstrating       that    reasonable     jurists      would

find that the district court’s assessment of the constitutional

claims is debatable or wrong.            Slack v. McDaniel, 529 U.S. 473,

484    (2000);   see    Miller-El   v.   Cockrell,         537   U.S.    322,   336-38

(2003).     When the district court denies relief on procedural

grounds, the prisoner must demonstrate both that the dispositive

procedural ruling is debatable, and that the motion states a

debatable claim of the denial of a constitutional right.                        Slack,

529 U.S. at 484-85.         We grant a certificate of appealability as

to one issue, vacate the district court’s order in part and

remand for further proceedings, and we deny a certificate of

appealability as to the remaining issues and dismiss the appeal

in part.

            Tejeda-Ramirez          claims          appellate       counsel        was

ineffective for failing to timely notify him of his right to

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file   a   petition    for     writ    of       certiorari    after     receiving    an

adverse decision from this court.                  This court’s opinion in his

appeal was issued December 11, 2007.                     Tejeda-Ramirez claims he

did not hear from counsel regarding the status of the appeal and

it was not until October 27, 2009, when he made an inquiry with

this court that he learned of the result of his appeal.

            In Wilkins v. United States, 441 U.S. 468 (1979), the

Supreme Court provided relief, under the Criminal Justice Act

(“CJA”),    for   an   out-of-time      pro       se     petitioner     whose    counsel

never filed a petition for certiorari despite assurances that

the petition was filed.            It stated that “the Courts of Appeals

for all of the Circuits provide in their rules or in plans

adopted    pursuant    to    the     Criminal      Justice     Act    that   a    court-

appointed   lawyer     must,    if    his       client    wishes   to    seek    further

review in this Court, represent him in filing a petition for

certiorari.”      Wilkins, 441 U.S. at 469.

            This court’s Plan states in relevant part:

       If the judgment of this court is adverse to the
       defendant, counsel shall inform the defendant, in
       writing, of his right to petition the Supreme Court
       for a writ of certiorari.     If the defendant, in
       writing, so requests and in counsel’s considered
       judgment there are grounds for seeking Supreme Court
       review, counsel shall prepare and file a timely
       petition for such a writ and transmit a copy to the
       defendant.

Plan, Part V, § 2.



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           In Proffitt v. United States, 549 F.2d 910, 912 (4th

Cir.   1976),    this     court     vacated    the    district    court’s      order

dismissing a § 2255 motion that alleged counsel’s failure to

consult the defendant and remanded the case for the purpose of

an evidentiary hearing because the district court incorrectly

found the appointed counsel had no duty to notify the defendant

of the result of his appeal before this court and of the right

to seek discretionary review from the Supreme Court.

           While       the    district   court       correctly    found   it     was

without authority to order an appropriate remedy, recalling the

mandate and reissuing this court’s opinion, it can make factual

findings in reference to Tejeda-Ramirez’s claim.                  Thus, we grant

a certificate of appealability on the issue of whether appellate

counsel failed to timely inform Tejeda-Ramirez in writing of his

right to file a petition for writ of certiorari after receiving

an adverse decision from this court and remand for the purpose

of making factual findings.              If the district court concludes

Tejeda-Ramirez did receive ineffective assistance of counsel in

this regard, Tejeda-Ramirez may file a motion in this court to

recall   the    mandate      and   reissue    the    court’s   judgment   and    for

appointment of counsel to assist in preparing a petition for

writ of certiorari.

           As    for    Tejeda-Ramirez’s        remaining      claims,    we    have

independently reviewed the record and conclude he has not made

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the requisite showing and we deny a certificate of appealability

on the remaining claims.

              Accordingly, we grant 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, vacate the district court’s order in

part,   and    remand      for     the    purpose    of     having   the   court      make

factual findings regarding this issue.                    We deny a certificate of

appealability with respect to the remaining issues and dismiss

the appeal in part.              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 IN PART AND REMANDED;
                                                                DISMISSED IN PART




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