                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 16-7339


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LARRY EUGENE LINGENFELTER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:10-cr-00153-RAJ-TEM-1; 2:14-cv-00575-RAJ)


Submitted:   March 28, 2017                 Decided:   April 20, 2017


Before GREGORY, Chief Judge, and KING and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Jeremy Brian Gordon, JEREMY GORDON, PLLC, Mansfield, Texas, for
Appellant.    Stephen Westley Haynie, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Larry    Eugene      Lingenfelter       seeks    to   appeal     the       district

court’s    order   denying    his   28   U.S.C.      § 2255      (2012)     motion   as

untimely.     Lingenfelter may not appeal from the dismissal of his

§ 2255    motion   unless     a    circuit     justice      or     judge    issues    a

certificate of appealability.            28 U.S.C. § 2253(c)(1)(B) (2012).

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) (2012).         Where the district court denies relief on

the merits, a prisoner satisfies this standard by demonstrating

“that     reasonable     jurists    would      find     the      district       court’s

assessment    of   the    constitutional       claims      debatable       or    wrong.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.

Cockrell, 537 U.S. 322, 336-38 (2003).                     Where, as here, the

district court denies relief on procedural grounds, the prisoner

must show that jurists of reason would find debatable whether the

motion states a valid claim of the denial of a constitutional

right, and whether the district court’s procedural ruling was

correct.     Slack, 529 U.S. at 484-85.

     We    affirmed      Lingenfelter’s      conviction       on    direct      appeal.

United States v. Lingenfelter, 473 F. App’x 303 (4th Cir. 2012)

(unpublished), cert. denied 134 S. Ct. 534 (2013).                        The Supreme

Court denied Lingenfelter’s petition for a writ of certiorari on

November 4, 2013, and Lingenfelter timely filed the instant motion

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on October 31, 2014.        See 28 U.S.C. § 2255(f)(1).                   Accordingly, we

find that jurists of reason would find debatable the district

court’s dismissal of Lingenfelter’s motion on timeliness grounds.

     Lingenfelter’s         § 2255     motion          advanced         two      claims   of

ineffective assistance of counsel.                    First, Lingenfelter alleged

that his trial counsel failed to inform him of a favorable plea

offer that the Government had memorialized in an email to his

counsel.      “[A]s a general rule, defense counsel has the duty to

communicate formal offers from the prosecution to accept a plea on

terms   and    conditions    that     may       be    favorable      to    the    accused.”

Missouri v. Frye, 566 U.S. 133, 145 (2012).                        Because Lingenfelter

contended that his counsel did not perform up to this standard, we

conclude that jurists of reason would find debatable whether he

stated a violation of his Sixth Amendment right to counsel.

     Lingenfelter also challenged his counsel’s decision not to

introduce certain evidence at trial.                       However, in his counseled

appellate brief, Lingenfelter merely notes that this claim was

made below without offering any argument as to its debatability.

Thus, he has waived appellate review of this claim. See Jackson v.

Lightsey, 775 F.3d 170, 177 (4th Cir. 2014).

     Accordingly, we grant a certificate of appealability on the

issue   of    whether   Lingenfelter        was        deprived      of    the    effective

assistance of counsel through his counsel’s alleged failure to

apprise      him   of   a   plea     offer,          and    deny    a     certificate     of

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appealability on the assertion of ineffective assistance based on

counsel’s decision not to introduce certain evidence at trial.                  We

vacate     the   district      court’s   order       and    remand   for   further

proceedings. *    We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before   this    court   and    argument     would    not   aid   the   decisional

process.

                                                            VACATED AND REMANDED




     * By this disposition, we express no view on the merits of
Lingenfelter’s claim.

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