                              UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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WL 2182187 (4th Cir. June 2, 2010) (unpublished), we granted a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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