9 F.3d 1544
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Lawrence TEARL, Petitioner-Appellant,v.Sewall SMITH, Warden;  Attorney General of the State ofMaryland, Respondents-Appellees.
No. 92-6274.
United States Court of Appeals,Fourth Circuit.
Submitted:  May 26, 1993.Decided:  November 16, 1993.

Appeal from the United States District Court for the District of Maryland, at Baltimore.
Lawrence Tearl, Appellant Pro Se.
Tarra R. Minnis, Office of the Attorney General of Maryland, Baltimore, Maryland, for Appellees.
D.Md.
VACATED AND REMANDED.
Before WILKINSON and NIEMEYER, Circuit Judges, and SPROUSE, Senior Circuit Judge.
PER CURIAM:

OPINION

1
Lawrence A. Tearl, a Maryland inmate, appeals from the district court's order refusing habeas corpus relief under 28 U.S.C. § 2254.  Tearl raised four claims in his habeas petition:  (1) he was denied effective assistance of counsel on direct appeal;  (2) his conviction was "obtained by use of evidence obtained pursuant to an unlawful arrest" because he was detained, searched, and never read his Miranda warnings;  (3) his conviction was obtained by use of a statement obtained in violation of Tearl's Miranda rights;  and (4) there was insufficient evidence to sustain his conviction.  The Defendant filed an Answer alleging that Tearl's claims were meritless.  The district court then summarily denied Tearl's petition.  Tearl noted a timely appeal.


2
Although the district court possesses the inherent power to enter summary judgment sua sponte, the exercise of this power is contingent on its giving the losing party notice that it must come forward and defend its claim.   United States Dev.  Corp. v. Peoples Fed.  Sav. & Loan Ass'n, 873 F.2d 731 (4th Cir. 1989).  The court must also alert a pro se litigant that failure to respond might result in entry of summary judgment against him.   Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).  Because Tearl was not given any notice prior to the district court's entry of summary judgment against him, we vacate the district court's order and remand to allow Tearl the opportunity to file affidavits or other appropriate materials in support of his claims.


3
We deny Tearl's motion for appointment of counsel and 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
