United States of America v.  Anthony Lee King

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-7773 
ANTHONY LEE KING,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-93-40, CA-98-297)
Submitted: April 27, 2001
Decided: May 23, 2001
Before WIDENER, LUTTIG, and KING, Circuit Judges.
Dismissed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
Anthony Lee King, Appellant Pro Se. Mary Hannah Lauck, OFFICE
OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION
PER CURIAM:
Anthony Lee King appeals the denial of his petition for collateral
review under 28 U.S.C.A. § 2255 (West Supp. 2000). He raises two
issues on appeal: (1) whether counsel was ineffective for failing to
object to or to raise on appeal the alleged constructive amendment of
the indictment; and (2) whether counsel was ineffective for failing to
notify him of the disposition of his direct criminal appeal in this court
in time to petition the Supreme Court for a writ of certiorari. We
review King’s ineffective assistance of counsel claims de novo. Bec-
ton v. Barnett, 920 F.2d 1190, 1192 (4th Cir. 1990). We find King’s
first issue to be without merit and therefore deny a certificate of
appealability and dismiss the appeal as to that claim. Because we con-
clude that there is a genuine issue of material fact as to King’s second
issue, we grant a certificate of appealability, vacate the district court’s
order and remand for further proceedings as to that claim.
King was convicted of five counts of possession of "listed chemi-
cals," having reasonable cause to believe the chemicals would be used
to manufacture methamphetamine, a controlled substance, in violation
of 21 U.S.C. § 841(d) (West 1994). We affirmed King’s convictions
and sentence on direct appeal. See United States v. King, 1997 WL
161669 (4th Cir. Apr. 8, 1997) (No. 96-4395) (unpublished).
We have reviewed King’s constructive amendment claim and find
no constructive amendment occurred. See, e.g., See United States v.
Randall, 171 F.3d 195, 209 (4th Cir. 1999). King was convicted of
the same crime charged by the grand jury. See, e.g., United States v.
Floresca, 38 F.3d 706, 710 (4th Cir. 1994). Finding no error in this
respect, we conclude King’s allegations of ineffective assistance in
regard to constructive amendment of the indictment are meritless. See
Strickland v. Washington, 466 U.S. 668 (1984). We therefore deny a
certificate of appealability and dismiss the appeal as to this claim.
We find King has made a substantial showing of the denial of a
constitutional right, however, as to whether counsel was ineffective
in failing to notify him of the adverse disposition of his criminal
appeal. See 28 U.S.C.A. § 2253 (West Supp. 2000). If an indigent
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defendant wishes to petition for a writ of certiorari of a judgment
affirming a criminal conviction, a court-appointed lawyer must repre-
sent him in filing the petition. Wilkins v. United States, 441 U.S. 468,
469 (1979); Proffitt v. United States, 549 F.2d 910, 912 (4th Cir.
1976) (remanding § 2255 claim alleging failure to advise of right to
petition for certiorari). This Court’s Internal Operating Procedure
("I.O.P.") 46.3 and Plan in Implementation of the Criminal Justice
Act of 1964 require appointed counsel to inform clients in writing of
the right to petition for certiorari and to file a petition if so requested.
King contends in his sworn pleading that his appointed appellate
attorney did not inform him of the disposition of his criminal appeal.
King provided a copy of a letter received from authorities at a federal
correctional facility denying his request for a legal locker because he
had no case pending on appeal. This letter, which King alleges was
the first notification he received concerning the disposition of his
criminal appeal, was dated more than ninety days following the issu-
ance of our opinion. King also attached copies of his correspondence
with this Court, indicating his prompt inquiry thereafter into the dis-
position of his appeal, and of this Court’s response, indicating counsel
was required to assist him in petitioning for a writ of certiorari.
Because King’s counsel died prior to King’s filing his habeas peti-
tion, King’s sworn assertion that he was not informed of the disposi-
tion of his appeal or if his right to petition the Supreme Court for a
writ of certiorari is uncontroverted. The Government acknowledges it
has no firsthand information from King’s counsel concerning whether
he informed King of the disposition of his appeal. Neither has the
Government obtained the attorney’s case file in King’s case. The
Government responded below that King’s counsel performed ade-
quately in other stages of the proceedings, but acknowledges that if
King’s allegation is true, a hearing is warranted. The Government also
admits, however, that it has not attempted to obtain King’s case file
from the executrix of his attorney’s estate.
The district court did not make a finding on the genuine issue of
material fact as to whether defense counsel adequately informed King
concerning the disposition of his appeal and his right to seek certio-
rari. We conclude that if counsel did not advise King of the disposi-
tion of his criminal appeal in this court and of the opportunity to seek
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a writ of certiorari from the Supreme Court, counsel would be ineffec-
tive under both prongs of Strickland v. Washington, 466 U.S. 668
(1984).
The record before us, however, is inadequate to resolve the factual
issue of whether counsel informed King of the disposition of his
appeal and his right to petition the Supreme Court for further review.
The district court should resolve this factual issue in the first instance.
We therefore grant a certificate of appealability on this issue, vacate
the district court’s disposition of this claim, and remand to the district
court for further proceedings. If the district court concludes on
remand that King received ineffective assistance in this respect, King
may then move in this court for our recall and re-issuance of the man-
date in his criminal appeal, United States v. King, No. 96-4395, and
for appointment of counsel to assist him with any petition for writ of
certiorari he may wish to file in the Supreme Court in that case.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED IN PART, VACATED IN PART, AND REMANDED
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