Bill Carroll, Jr., Petitioner-appellant, v. Linwood v. Stephenson; Attorney General of North Carolina,respondents-appellees, 887 F.2d 1078 (4th Cir. 1990)

Bill Carroll, Jr., seeks to appeal the district court's order dismissing his habeas corpus petition pursuant to 28 U.S.C. § 2254 as frivolous. We vacate the district court's order and remand for further proceedings.

Carroll's petition alleged, among other things, that his lawyer had been ineffective in failing, among other things, to file a discovery motion, to move to suppress evidence seized as a result of an unconstitutional search, and to call witnesses; he further alleged that the evidence was insufficient to sustain his conviction.^*  These are not patently frivolous claims. See Rule 4, Rules foll. 28 U.S.C. § 2254; Kimmelman v. Morrison, 477 U.S. 365 (1986) (allegation that counsel failed to conduct discovery and properly litigate Fourth Amendment claims states Sixth Amendment claim reviewable in federal habeas corpus); Jackson v. Virginia, 443 U.S. 307 (1979) (sufficiency of evidence claim reviewable in federal habeas corpus). Because the record at this point is insufficient to resolve these claims, the district court's sua sponte dismissal of the petition was premature. Accordingly, we grant a certificate of probable cause to appeal, vacate the district court's judgment and remand for further proceedings.

VACATED AND REMANDED.