                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 07-6358


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

ROBERT JARED SMITH, a/k/a J-Dog,

                Defendant – Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.    Joseph R. Goodwin,
Chief District Judge. (2:99-cr-00198-3; 2:05-cv-00431)


Argued:   September 26, 2008             Decided:   November 19, 2008


Before MICHAEL and MOTZ, Circuit Judges, and James C. DEVER III,
United States District Judge for the Eastern District of North
Carolina, sitting by designation.


Vacated by unpublished per curiam opinion.


ARGUED: Susan Hills Nelson, Student Counsel, CHARLESTON SCHOOL
OF LAW, Charleston, South Carolina, for Appellant.      Miller A.
Bushong, III, OFFICE OF THE UNITED STATES ATTORNEY, Beckley,
West Virginia, for Appellee.     ON BRIEF: Margaret M. Lawton,
CHARLESTON SCHOOL OF LAW, Charleston, South Carolina, for
Appellant.   Charles T. Miller, United States Attorney, John J.
Frail, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Robert Jared Smith appeals from the judgment of the

United States District Court for the Southern District of West

Virginia denying his motion for post-conviction relief under 28

U.S.C. § 2255.       Smith claims in part that his appellate counsel

failed to carry out his request to file a petition for a writ of

certiorari to the Supreme Court of the United States.                   On appeal

we construe Smith’s § 2255 motion as a motion to recall our

mandate.     We grant the motion, which allows us to vacate and

reenter our earlier judgment affirming Smith’s sentence.                     This

relief     will   enable   Smith   to       file   a   timely     petition      for

certiorari.



                                     I.

            Smith was tried and convicted on July 13, 2000, of

conspiracy to distribute cocaine base and aiding and abetting

possession    with   intent   to   distribute      cocaine      base.     See   21

U.S.C. § 841(a)(1); 18 U.S.C. § 2.             At sentencing the district

court enhanced Smith’s offense level by four levels based on

findings that Smith had played a leadership role in the original

conspiracy.       Smith was sentenced within the guidelines range to

a life sentence on the conspiracy count and a concurrent twenty-

year sentence for the aiding and abetting count.                  On appeal we

affirmed Smith’s convictions, but remanded after concluding that

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the district court had erred by applying the leadership role

enhancement.          At Smith’s second sentencing the district court

resentenced him without using the leadership role enhancement.

After calculating a guidelines range of 324 to 405 months, the

district court resentenced Smith to 405 months’ imprisonment on

the conspiracy count and a concurrent sentence of 240 months on

the aiding and abetting count.

               Smith appealed his new sentence, and pursuant to the

provisions of the Criminal Justice Act (CJA), 18 U.S.C. § 3006A,

we    appointed         counsel       (hereafter,         “appellate       counsel”      or

“counsel”) to represent him in the appeal.                          Appellate counsel

filed a brief in accordance with Anders v. California, 386 U.S.

738     (1967),      arguing    that    the       evidence    was       insufficient     to

support       Smith’s    conspiracy      conviction.          We    affirmed    the     new

sentence       and   noted     that    the   mandate       rule    precluded    us    from

considering the evidentiary issue.                   United States v. Smith, 98

Fed. App’x 962 (4th Cir. 2004) (unpublished).                           Consistent with

the CJA, our opinion, filed June 8, 2004, instructed appellate

counsel to inform Smith in writing of his right to petition the

Supreme Court of the United States for further review.                                  Our

opinion    also      advised    counsel      that    “If    Smith    requests     that    a

petition be filed, but counsel believes that such a petition

would    be    frivolous,      then    counsel      may    move    in    this   court    to

withdraw from representation.”               J.A. 68.

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            In a letter dated June 25, 2004, appellate counsel

informed Smith that the Fourth Circuit had denied his appeal and

wrote, “You have a right to have a Petition for Certiorari filed

with the United States Supreme Court, and I will do that for you

if you request.”          J.A. 114.          The last sentence of counsel’s

letter repeated her offer:                “Please let me know if you want me

to file the Petition.”              Id.    The letter also included a hand-

written    postscript     in    which      counsel     informed    Smith     that    the

Supreme    Court    had   “just      found      Washington     State’s     sentencing

guidelines unconstitutional.               If you haven’t filed your habeas

petition    yet     please      include         that   issue     re:   the    Federal

Sentencing Guidelines.”             Id.     Appellate counsel was apparently

referring to Blakely v. Washington, 542 U.S. 296 (2004), which

the Supreme Court decided on June 24, 2004, the day before her

letter to Smith.

            Smith    says      in    his    affidavit     that    he   talked       with

appellate counsel on the telephone shortly after receiving her

June 25, 2004, letter and requested that she file a petition for

a writ of certiorari.           Smith also says that counsel agreed to

file the petition.           Counsel, in her affidavit, says that she

remembers having a conversation with Smith, but she no longer

has her notes from the conversation.                   (Counsel did not address

the key issue, that is, whether she had been asked to file a

petition for certiorari.              She admitted, however, that she did

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not move to withdraw as counsel.)                  Two months after making his

request, Smith called counsel to follow up, but he was unable to

reach her.        The affidavits prompted the government to concede

that counsel, “after being requested to do so . . . failed to

prepare for filing in the Supreme Court a timely Petition for a

Writ of Certiorari.”          J.A. 119.

            Smith filed in district court a pro se motion under 28

U.S.C. §     2255, arguing that he should be resentenced pursuant

to United States v. Booker, 543 U.S. 220 (2005), and that he was

deprived     of    the    effective      assistance      of   appellate     counsel

because his counsel failed to file a petition for certiorari, as

requested.        The district court denied Smith’s petition, holding

that   Smith      did   not   have   a   constitutional       right   to   have   his

appellate counsel file a petition for certiorari in the Supreme

Court.     Smith appealed the dismissal, and this court granted a

certificate        of    appealability        on   the   question     of    whether

counsel’s failure to file a certiorari petition, as requested,

violates the Sixth Amendment right to counsel.



                                          II.

            We first consider Smith’s alternative argument.                       He

contends that appellate counsel’s representation after the entry

of judgment in his second appeal violated his rights under the



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Criminal Justice Act, 18 U.S.C. § 3006A.    This court’s Plan In

Implementation of the Criminal Justice Act (CJA Plan) provides:

          Appellate Counsel:     Every attorney . . . who
     represents a defendant in this court shall continue to
     represent his client after termination of the appeal
     unless relieved of further responsibility by this
     court or the Supreme Court.     Where counsel has not
     been relieved:

          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. Thereafter, unless otherwise instructed by
     the Supreme Court or its clerk, or unless any
     applicable rule, order or plan of the Supreme Court
     shall otherwise provide, counsel shall take whatever
     further steps are necessary to protect the rights of
     the defendant, until the petition is granted or
     denied.

          If the appellant requests that a petition for
     writ of certiorari be filed but counsel believes that
     such a petition would be frivolous, counsel may file a
     motion to withdraw with this court wherein counsel
     requests to be relieved of the responsibility of
     filing a petition for writ of certiorari. The motion
     must reflect that a copy was served on the client.

CJA Plan, Part V, § 2; see also 18 U.S.C. § 3006A.        In this

case, appellate counsel did not file a motion to withdraw.    And,

as the government concedes, counsel failed to file a petition

for certiorari after being requested to do so by Smith.      These

circumstances resulted in a violation of Smith’s rights under




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this court’s CJA Plan.             We must therefore determine what remedy,

if any, is available to Smith.

              Smith points out that Wilkins v. United States, 441

U.S. 468 (1979) (per curiam), suggests the remedy.                         In Wilkins,

as in the case before us, court-appointed counsel failed to file

a petition for certiorari after being requested to do so.                               Id.

at 468.       The Court first pointed to the CJA as the basis for

relief, summarizing a defendant’s right under the CJA to the

assistance of counsel in seeking certiorari.                       When counsel has

failed to fulfill its CJA obligations with respect to the matter

of    certiorari,      the    Supreme   Court     noted    that    a    circuit     court

could vacate and reenter judgment to permit a defendant to file

a timely petition for certiorari:

       Had the petitioner presented his dilemma to the Court
       of Appeals by way of a motion for the appointment of
       counsel to assist him in seeking review here, the
       court then could have vacated its judgment affirming
       the convictions and entered a new one, so that this
       petitioner, with the assistance of counsel, could file
       a timely petition for certiorari.

Wilkins, 441 U.S. at 469; see also Schreiner v. United States,

404    U.S.   67,     67   (1971)    (per     curiam)     (invoking      the     CJA    and

remanding     to      court   of    appeals      for   reentry     of    judgment       and

appointment      of    counsel     to   assist    with    seeking       review    in    the

Supreme Court).

              To vacate and reenter the judgment in Smith’s case, we

must    recall      our    mandate,     an    action     that     we    take     only    in

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extraordinary circumstances.                      See Calderon v. Thompson, 523 U.S.

538, 549-50 (1998); Alphin v. Henson, 552 F.2d 1033, 1035 (4th

Cir. 1977)       (per curiam).

               We have previously recalled our mandate and reentered

judgment in a case similar to this one.                               In United States v.

Masters, No. 91-6100, 1992 WL 232466, at *3 (4th Cir. Sept. 22,

1992) (unpublished), we determined that appellate counsel had

violated his duty under the CJA Plan to file a petition for

certiorari requested by his client.                            We denied the collateral

relief    requested          under      § 2255,         but,    relying     on    Wilkins,     we

vacated        the    mandate         and    reentered         judgment     to    enable     the

defendant to file a timely petition for certiorari.                                Id.      Other

courts of appeals have followed the same course.                                   See, e.g.,

Nnebe     v.     United       States,        534       F.3d    87,    91    (2d   Cir.      2008)

(recalling the mandate and reentering judgment so that timely

petition for certiorari might be filed on behalf of defendant);

United States v. Howell, 37 F.3d 1207, 1210 (7th Cir. 1994)

(same); United States v. James, 990 F.2d 804, 805 (5th Cir.

1993) (same).

               Smith has not filed a motion to recall the mandate.

Rather,    he        filed   a   pro    se    motion          for   post-conviction      relief

under    28     U.S.C.       § 2255,        and    he    appeals      the   denial     of   that

motion.         We     may,      of    course,          construe     his    pro   se     filings

liberally.           See Hill v. Braxton, 277 F.3d 701, 707 (4th Cir.

                                                   9
2002)    (“[T]he    long-standing         practice       is    to    construe       pro   se

pleadings liberally.”); see also Hughes v. Rowe, 449 U.S. 5, 9

(1980) (holding that complaints drafted by pro se prisoners are

held to “less stringent standards than formal pleadings drafted

by   lawyers”)      (quoting     Haines    v.    Kerner,        404       U.S.   519,     520

(1972)).     We have, on occasion, construed a § 2255 petition as a

motion to recall the mandate.              See Masters, 976 F.2d at *3; see

also United States v. Capers, 182 Fed. App’x 207, 208 n.* (4th

Cir. 2006) (per curiam) (noting that the court may construe a

§ 2255     motion    as     a    motion     to   recall         the       mandate    where

extraordinary       circumstances      warrant       a    recall).           And,    other

courts of appeals have done the same.                         See, e.g., Nnebe, 534

F.3d at 91; Howell, 37 F.3d at 1210.

             In this case Smith was deprived of his CJA right to

counsel’s assistance in filing a petition for certiorari, if “in

counsel’s considered judgment there [were] grounds for seeking

Supreme Court review.”           CJA Plan, Part V, § 2.               This deprivation

is   sufficiently      extraordinary        to    warrant           our    treatment      of

Smith’s § 2255 motion as a motion to recall the mandate, which

we   grant    in    order       to   provide     appropriate          relief.           (The

government acknowledged at oral argument that it did not object

to this resolution.)

             Accordingly, an order will be entered recalling our

mandate and vacating and reentering judgment in United States v.

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Smith, No. 02-4928 (4th Cir. June 8, 2004).              Counsel will be

appointed to assist Smith (in accordance with this court’s CJA

Plan) with respect to the matter of a petition for certiorari to

the Supreme Court of the United States.

          Because we treat Smith’s § 2255 motion as a motion to

recall   the   mandate,   we   vacate   the   district    court’s    order

dismissing the § 2255 motion. *

                                                                    VACATED




     *
       In light of the relief granted, it is not necessary for us
to reach the merits of the district court’s decision.



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