UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-6460


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

BRUCE OKELLO JOSEPH, a/k/a Okello Bruce Joseph,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.     Malcolm J. Howard,
Senior District Judge. (4:02-cr-00060-H-4; 4:07-cv-00126-H)


Submitted:    October 5, 2009                 Decided:   October 23, 2009


Before NIEMEYER, KING, and SHEDD, Circuit Judges.


Vacated in part and remanded; dismissed in part by unpublished
per curiam opinion.


Bruce Okello Joseph, Appellant Pro Se.  Rudolf A. Renfer, Jr.,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Bruce       Okello    Joseph      seeks       to    appeal       the     district

court’s order denying his 28 U.S.C.A. § 2255 (West Supp. 2009)

motion.    The order is not appealable unless a circuit justice or

judge     issues    a    certificate         of     appealability.              28     U.S.C.

§ 2253(c)(1) (2006).             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)         (2006).           A

prisoner     satisfies       this          standard       by        demonstrating          that

reasonable    jurists       would      find       that    any       assessment       of        the

constitutional      claims       by   the    district       court      is    debatable          or

wrong and that any dispositive procedural ruling by the district

court is likewise debatable.                 Miller-El v. Cockrell, 

, 336-38 (2003); Slack v. McDaniel, 

, 484 (2000);

Rose v. Lee, 

, 683-84 (4th Cir. 2001).                             We grant a

certificate    of       appealability        as     to    one       issue,    vacate           the

district     court’s       order      in     part     and       remand       for      further

proceedings and we deny a certificate of appealability as to

Joseph’s other issue and dismiss the appeal in part.

            Joseph       claims       appellate          counsel       failed        in        his

obligation to timely notify him of his right to file a petition

for writ of certiorari after receiving an adverse decision from

this court in his appeal from his criminal judgment.                            In support

of his claim, Joseph submitted an affidavit prepared by him and

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a letter from his appointed counsel’s law firm providing him

with a copy of the court’s decision in United States v. Staine,

No.   05-4717(L),    

       (4th    Cir.     June    21,    2006)

(unpublished).       The letter is dated February 9, 2007, nearly

eight months after this court’s decision.

            In Wilkins v. United States, 

 (1979), the

Supreme Court provided relief, under the Criminal Justice Act,

for an out-of-time pro se petitioner whose counsel never filed a

petition for certiorari despite assurances from his counsel that

the petition was filed.            It stated that “the Courts of Appeals

for all of the Circuits provide in their rules or in plans

adopted   pursuant    to    the     Criminal      Justice    Act    that    a    court-

appointed   lawyer    must,    if    his       client    wishes   to   seek      further

review in this court, represent him in filing a petition for

certiorari.”     Wilkins, 441 U.S. at 469.

            This court’s Plan In Implementation of the Criminal

Justice Act states in relevant part:

      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.

Plan, Part V, § 2.




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           In Proffitt v. United States, 

, 912 (4th

Cir.   1976),   this    court     vacated    the     district    court’s       order

dismissing a § 2255 motion that alleged counsel’s failure to

consult the defendant and remanded the case for the purpose of

an evidentiary hearing because the district court incorrectly

found the appointed counsel had no duty to notify the defendant

of the result of his appeal before this court and of the right

to seek discretionary review from the Supreme Court.

           While the district court in this case correctly found

it was without authority to order an appropriate remedy, such as

recalling the mandate and reissuing this court’s opinion, it can

make factual findings in reference to Joseph’s claim.                    Thus, we

grant a certificate of appealability on the issue of whether

Joseph’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.                       If the

district   court      concludes     Joseph’s        counsel     failed    in     his

obligations in this regard, Joseph may file a motion in this

court to recall the mandate, reissue the court’s judgment and

appoint counsel to assist in preparing a petition for writ of

certiorari.

           As   for    Joseph’s      claim     he     was     denied     effective

assistance of counsel with respect to him being sentenced based

on the jury finding that he conspired to distribute or possess

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with   intent   to    distribute   more    than   fifty    grams    of   crack

cocaine, we have independently reviewed the record and conclude

Joseph has not made the requisite showing.          Accordingly, we deny

a certificate of appealability on this issue.

           Accordingly, we grant a certificate of appealability

on the issue of whether Joseph’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, vacate the district court’s order in part and remand for

the purpose of having the court make factual findings regarding

this issue.     We deny a certificate of appealability with respect

to Joseph’s remaining issue and dismiss the appeal in part.                 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 IN PART AND REMANDED;
                                                       DISMISSED IN PART




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