UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-7140

JEFFREY WOODHOUSE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CR-92-113, CA-95-243)

Submitted: March 12, 1996

Decided: May 28, 1996

Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed in part, vacated in part, and remanded by unpublished per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

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COUNSEL

Jeffrey Woodhouse, Appellant Pro Se. Laura Marie Everhart, Assis-
tant United States Attorney, Norfolk, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Jeffrey Woodhouse was convicted of conspiracy to possess and to
distribute cocaine and three related cocaine offenses. 21 U.S.C.
§§ 841(a)(1), 846 (1988). He was sentenced to four concurrent 163-
month prison terms. After this court affirmed his conviction and sen-
tence on direct appeal, United States v. Harris , 39 F.3d 1262 (4th Cir.
1994), Woodhouse brought a 28 U.S.C. § 2255 (1988) motion in dis-
trict court. In his motion, Woodhouse claimed that he received inef-
fective assistance of counsel at sentencing and on appeal. After
receiving the Government's response, the district court entered an
order denying Woodhouse's motion. Because we find a genuine issue
of material fact concerning Appellant's claim that he was not advised
of his right to petition the United States Supreme Court for a writ of
certiorari, we affirm the district court's order in part, vacate in part,
and remand for further proceedings.

Because the district court relied on evidence beyond the parties'
pleadings, its order was in the nature of summary judgment. See Fed.
R. Civ. P. 56(c). This court reviews de novo a district court's grant
of summary judgment, and affirms only if the record reveals no genu-
ine issue of material fact. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.),
cert. denied, ___ U.S. ___, 63 U.S.L.W. 3257 (U.S. Oct. 4, 1994)
(Nos. 93-1839, 94-9). A genuine issue of material fact exists when,
viewed in the light most favorable to the nonmovant,"the evidence
presents a sufficient disagreement to require submission to a jury."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). At
summary judgment, all issues of credibility are resolved in the non-
movant's favor. Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir.
1990), cert. denied, 498 U.S. 1109 (1991). A party moving for sum-
mary judgment must show the lack of evidence to support his oppo-
nent's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
However, the nonmovant then bears the burden of demonstrating the
presence of a contested issue of fact. The nonmovant must point to
specific evidence establishing a triable dispute, and cannot rely upon
bare allegations. Anderson, 477 U.S. at 248; Fed. R. Civ. P. 56.

In his § 2255 motion, Woodhouse raised four claims of ineffective
assistance of counsel: (1) failure to assert any defense or position rela-

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tive specifically to Woodhouse in his consolidated direct appeal; (2)
failure to review the presentence investigation report (PSR) with
Woodhouse or "to assert a position under relevant conduct before sen-
tencing;" (3) failure to challenge the sentencing court's aggregation
of cocaine base and powder to set his offense level; and (4) failure to
advise Woodhouse of his right to petition the Supreme Court for writ
of certiorari. To prevail on an ineffective assistance claim, a petitioner
must show that defense counsel's representation fell below an objec-
tive standard of reasonably effective assistance under prevailing pro-
fessional norms, and that but for counsel's unprofessional errors the
outcome of the proceeding would have been different. See Strickland
v. Washington, 466 U.S. 668, 687-88 (1984); Briley v. Bass, 750 F.2d
1238, 1247 (4th Cir. 1984), cert. denied, 470 U.S. 1088 (1985). The
Court must "indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance,"
Strickland, 466 U.S. at 689, and must filter from its analysis the dis-
torting effects of hindsight. Bunch v. Thompson , 949 F.2d 1354,
1363-64 (4th Cir. 1991), cert. denied, 505 U.S. 1230 (1992).

Woodhouse was tried with several of his co-conspirators, and his
direct appeal was consolidated with those of co-conspirators Harris,
Boone, Caldwell, McLaughlin, Braxton and Calloway. Harris, 39
F.3d 1262. Woodhouse asserts that counsel failed to assert any claim
or position specific to him. However, six of the fourteen issues raised
on direct appeal concerned Woodhouse.1 Therefore, we find no merit
to his claim. To the extent that Woodhouse faults counsel's failure to
raise any claims unique to him, he neither identifies any such claims
nor explains how they would have affected the outcome of his appeal.

Woodhouse next avers that counsel failed to review the PSR with
him. As a result, he claims that counsel failed to properly challenge
the drug quantities attributed to him in paragraphs nineteen, thirty-
one, thirty-two, and thirty-three of the offense conduct section of the
_________________________________________________________________
1 The six claims were: (1) failure to instruct the jury on the possibility
of multiple conspiracies; (2) violation of sequestration order by prosecu-
tion witnesses; (3) prosecution's introduction of invalid summary
exhibit; (4) error in the quantity of drugs attributed to Defendants; (5) the
disparity between penalties for cocaine base and powder; and (6) suffi-
ciency of the evidence.

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report. In his affidavit, counsel states that he reviewed the PSR with
Woodhouse.

Assuming that counsel did not review the PSR with Woodhouse,
he cannot show either deficient performance by counsel or prejudice.
Prior to sentencing, counsel noted objections to paragraphs thirteen,
nineteen, twenty, twenty-seven through thirty-four, and fifty-four of
the PSR. Moreover, counsel strongly argued against the drug quanti-
ties attributed to Woodhouse in these sections. As a result, the sen-
tencing court removed the following drug amounts from
Woodhouse's offense conduct: (1) 42.52 grams of cocaine listed in
paragraph twenty-seven; (2) 21.2 grams of cocaine base listed in para-
graph twenty-eight; and (3) 1.46 kilograms of cocaine base listed in
paragraph thirty-four. Counsel's performance at sentencing reduced
Woodhouse's total offense level from forty to thirty-four.

Woodhouse claims that the 36.2 ounces of powder cocaine listed
in paragraph nineteen are not supported by the testimony of Clarence
Lindsey, upon whom the Government relied in proving this amount.
Counsel made this exact argument at sentencing. Woodhouse also
claims that Lindsey's testimony did not establish the drug amounts
contained in paragraphs thirty-one and thirty-two. However, the PSR
relied on testimony of Tyrone Boone for these quantities, and counsel
contested the vagueness and unreliability of his testimony. Finally,
Woodhouse objected to the reliance on Tyrone Boone's grand jury
testimony that an individual named Mann, who was never identified
or located by the Government, supplied the cocaine powder at issue
in paragraph thirty-three. Counsel thoroughly cross-examined the
Government's witness on this issue at sentencing. Moreover, counsel
for Reginald Boone, one of Woodhouse's co-defendants, also argued
against the reliability of this evidence. Therefore, Woodhouse's claim
of ineffective assistance is meritless.

Woodhouse next faults counsel for failing to object to the sentenc-
ing court's aggregation of powder cocaine and cocaine base for the
purpose of sentencing him under the Guidelines. 2 He notes that in
Harris, this court held it improper to aggregate different drugs for the
_________________________________________________________________
2 United States Sentencing Commission, Guidelines Manual (Nov.
1994).

                    4
purpose of invoking the statutory mandatory minimum sentence under
21 U.S.C.A. § 841(b)(1)(A) (West Supp. 1995). 39 F.3d at 1271
(quoting United States v. Irvin, 2 F.3d 72, 73, 77 (4th Cir. 1993), cert.
denied, ___ U.S. ___, 62 U.S.L.W. 3552 (U.S. Feb. 22, 1994) (No.
93-7103)). However, Woodhouse did not receive an enhancement
based on the statutory mandatory minimum, but was sentenced under
the Guidelines. The Guidelines clearly allow for aggregation of differ-
ent controlled substances for the purpose of setting a defendant's base
offense level. USSG § 2D1.1(c), Drug Equivalency Tables.

Finally, Woodhouse avers that counsel failed to advise him of his
right to petition the United States Supreme Court for a writ of certio-
rari. His claim is sworn under penalty of perjury. The Government
submitted a sworn affidavit from Woodhouse's counsel in which he
stated that he advised Woodhouse of his right to petition for certiorari.
The district court deemed counsel's affidavit sufficient to show that
he advised Woodhouse of his rights.

Under the Criminal Justice Act, a federal criminal defendant in the
Fourth Circuit has the right to representation through his direct
appeal, including the filing of a certiorari petition in the Supreme
Court. Plan of the United States Court of Appeals for the Fourth Cir-
cuit in Implementation of the Criminal Justice Act, 18 U.S.C.
§ 3006A (1988), II(3) (effective Mar. 30, 1995). Counsel on appeal
must both inform his client of his right to petition for certiorari and
file the necessary papers. Profitt v. United States, 549 F.2d 910, 912-
13 (4th Cir. 1976), cert. denied, 429 U.S. 1076 (1977).

Evidence on this issue is limited to the opposing statements of
Woodhouse and counsel. Because Appellant submitted a sworn state-
ment in support of his position on this issue, summary judgment was
improper. See Miller v. Leathers, 913 F.2d at 1087. Accordingly, we
must remand to the district court for further proceedings on this issue,
if required. Profitt, 549 F.2d at 913.

We affirm the district court's order in part, vacate in part, and
remand for further proceedings consistent with this opinion. We dis-
pense with oral argument because the facts and legal contentions are

                     5
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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