Thursday, March 31, 2011

District Court requests Fourth Circuit withdraw and reenter its mandate

Lewis v. United States, No, 5:07CR5-01, 2011 WL 1106766 (N.D. W. Va. Mar. 23, 2011):

Petitioner claims that his appellate counsel was ineffective for failing to file a petition for writ of certiorari despite having been directed to do so. The Fourth Circuit addressed the issue of appellate counsel's failure to carry out a defendant's request to file a petition for writ of certiorari in United States v. Smith, 321 F. App'x 229, 233 (4th Cir. 2008), in which it held that Smith's § 2255 motion would be treated as a motion to withdraw the mandate, permitting the earlier judgment to be vacated and re-entered, allowing for the timely petition for writ of certiorari.

This Court agrees that the interests of justice require that the petitioner be given an opportunity to file his petition for writ of certiorari. However, only the Fourth Circuit can recall the mandate. For this reason, this Court advises the Fourth Circuit by this memorandum opinion and order of the petitioner's desire to file a petition for writ of certiorari so that it can take any action it deems appropriate.

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