UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-6886


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHN JOHNSON TERRELL, II,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:06-cr-00493-JCC-1; 1:09-cv-00846-JCC)


Submitted:   December 7, 2010             Decided:   December 21, 2010


Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


John Johnson Terrell, II, Appellant Pro Se. William H. Jones,
II, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           John Johnson Terrell, II, appeals the district court's

order denying relief on his 28 U.S.C.A § 2255 (West Supp. 2010)

motion.    We vacate and remand for further proceedings.

           Terrell pleaded guilty to one count of possession with

intent to distribute five grams or more of crack cocaine, in

violation of 21 U.S.C. § 841(a)(1) (2006), and to possession of

a   firearm    in       furtherance    of    a    drug     trafficking   crime,   in

violation of 18 U.S.C. § 924(c) (2006).                     Terrell was sentenced

as a career offender to a total of 262 months of imprisonment.

Judgment was entered on March 9, 2007.                      There is conflicting

evidence      as        to   whether   Terrell        directed     his    attorney,

Brisendine,        to    file   a   direct       appeal.      Terrell    claims   he

repeatedly attempted to contact Brisendine, and Brisendine never

responded.     Brisendine avers he never received any of Terrell’s

letters and was never instructed to file an appeal.

           After learning an appeal had never been filed in his

case, Terrell filed a § 2255 motion.                  However, by the date the

motion was filed, the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”) statute of limitations had run.                    28 U.S.C.

§ 2255(f) (2006).            Although Terrell argued for equitable tolling

of the statute of limitations, the district court found that

such tolling was inapplicable.                   The court, however, granted a



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certificate     of    appealability     as     to    its   resolution        of    the

applicability of equitable tolling.

            After the district court issued its order, the Supreme

Court issued its decision in Holland v. Florida, 

(2010).    Holland affirmed that equitable tolling applies to the

AEDPA’s statute of limitations.             

      Specifically, the

Court found that, in order to be entitled to equitable tolling,

the movant must show (1) that he has diligently pursued his

rights and (2) that some extraordinary circumstance prevented

the timely filing.         

            The Court also discussed

whether    attorney    misconduct      could    satisfy    the    “extraordinary

circumstance”    requirement.          

     Answering        the

question   in   the   affirmative,      the    Court   held    that,       while   the

attorney    misconduct    must    be   more     egregious      than    a    “‘garden

variety claim of excusable neglect,’” the requirement might be

met by a showing of an extraordinary failure by the attorney to

provide reasonably competent legal work, to communicate with his

client, to implement his client’s reasonable request, to keep

his clients informed of key developments in their cases, and to

never abandon a client.          

(quoting Irwin v. Dep’t of

Veterans Affairs, 

, 96 (1990)).

            Because the district court did not have the benefit of

Holland when it considered Terrell’s motion, and because there

is conflicting evidence in the record as to both prongs of the

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Holland    analysis,      we   vacate     the   district    court’s   order     and

remand    for   further    proceedings        consistent    with   Holland.      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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