US v. Opande, No. 05-7378 (4th Cir. 2006)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-7378 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus GEORGE OGUENO OPANDE, Defendant - Appellant. No. 05-7947 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus GEORGE OGUENO OPANDE, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (CR-04-216; CA-05-748) Submitted: November 8, 2006 Decided: December 20, 2006 Before WILKINSON, KING, and SHEDD, Circuit Judges. No. 05-7378 dismissed; No. 05-7947 unpublished per curiam opinion. vacated and remanded by George Ogueno Opande, Appellant Pro Se. Lawrence Joseph Leiser, Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. - 2 - PER CURIAM: In these consolidated appeals, George Ogueno Opande seeks to appeal the district court s orders denying relief on his 28 U.S.C. § 2255 reconsideration. (2000) motion and denying his motion for We issued a certificate of appealability on the district court s failure to appoint counsel for the evidentiary hearing. See Rule 8(c) of the Rules Governing Section 2255 Proceedings. Under Rule 8(c) of the Rules Governing Section 2255 Proceedings, [i]f an evidentiary hearing is required, the judge must appoint an attorney to represent a moving party who qualifies to have counsel appointed under 18 U.S.C. § 3006A at any stage of the proceeding. clear. The provisions of this rule are mandatory and See also Advisory Committee note 8(c) to Rule 8 of the Rules Governing Section 2254 Cases (stating that [a]ppointment of counsel at [the hearing] stage is mandatory ).* Opande proceeding in forma pauperis and would qualify for counsel. § 3006A(a)(1), (2)(B). is See The failure to appoint counsel results in a reversal. See United States v. Vasquez, 7 F.3d 81, 83-84 (5th Cir. 1993). Accordingly, in No. 05-7947, we vacate the March 3, 2006 order denying the motion for reconsideration and remand to the * Although this clarification appears in the Advisory Committee notes for the Rules Governing § 2254 Cases, Advisory Committee Note 8(c) for the Rules Governing § 2255 Proceedings refers to the notes contained in the § 2254 Rules. - 3 - district court to appoint counsel and hold a new evidentiary hearing. In No. 05-7378, Opande seeks to appeal the district court order denying relief on his claims that his conviction was manufactured by law enforcement, that he was the victim of entrapment and improper inducement, that he was due a downward departure because he was entrapped and because he was infected with tuberculosis while being detained. The district court s order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). not issue absent a constitutional right. A certificate of appealability will substantial showing of the denial 28 U.S.C. § 2253(c)(2) (2000). of a 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, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 68384 (4th Cir. 2001). We have independently reviewed the record and conclude Opande has not made the requisite showing. Accordingly, in No. 05-7378, we deny a certificate of appealability and dismiss the appeal. In No. 05-7947, we vacate the March 3, 2006 order and remand to the district court to appoint counsel and to hold a new - 4 - evidentiary hearing. facts and materials legal before We dispense with oral argument because the contentions the court are adequately and argument presented would not in the aid the decisional process. No. 05-7378 DISMISSED No. 05-7947 VACATED AND REMANDED - 5 -