UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-7773

ANTHONY LEE KING,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CR-93-40, CA-98-297)

Submitted: April 27, 2001

Decided: May 23, 2001

Before WIDENER, LUTTIG, and KING, Circuit Judges.

Dismissed in part, vacated in part, and remanded by unpublished per

curiam opinion. 

COUNSEL

Anthony Lee King, Appellant Pro Se. Mary Hannah Lauck, OFFICE

OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for

Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Anthony Lee King appeals the denial of his petition for collateral

review under 28 U.S.C.A. § 2255 (West Supp. 2000). He raises two

issues on appeal: (1) whether counsel was ineffective for failing to

object to or to raise on appeal the alleged constructive amendment of

the indictment; and (2) whether counsel was ineffective for failing to

notify him of the disposition of his direct criminal appeal in this court

in time to petition the Supreme Court for a writ of certiorari. We

review King’s ineffective assistance of counsel claims de novo. Becton v. Barnett, 920 F.2d 1190, 1192 (4th Cir. 1990). We find King’s

first issue to be without merit and therefore deny a certificate of

appealability and dismiss the appeal as to that claim. Because we conclude that there is a genuine issue of material fact as to King’s second

issue, we grant a certificate of appealability, vacate the district court’s

order and remand for further proceedings as to that claim. 

King was convicted of five counts of possession of "listed chemicals," having reasonable cause to believe the chemicals would be used

to manufacture methamphetamine, a controlled substance, in violation

of 21 U.S.C. § 841(d) (West 1994). We affirmed King’s convictions

and sentence on direct appeal. See United States v. King, 1997 WL

161669 (4th Cir. Apr. 8, 1997) (No. 96-4395) (unpublished). 

We have reviewed King’s constructive amendment claim and find

no constructive amendment occurred. See, e.g., See United States v.

Randall, 171 F.3d 195, 209 (4th Cir. 1999). King was convicted of

the same crime charged by the grand jury. See, e.g., United States v.

Floresca, 38 F.3d 706, 710 (4th Cir. 1994). Finding no error in this

respect, we conclude King’s allegations of ineffective assistance in

regard to constructive amendment of the indictment are meritless. See

Strickland v. Washington, 466 U.S. 668 (1984). We therefore deny a

certificate of appealability and dismiss the appeal as to this claim. 

We find King has made a substantial showing of the denial of a

constitutional right, however, as to whether counsel was ineffective

in failing to notify him of the adverse disposition of his criminal

appeal. See 28 U.S.C.A. § 2253 (West Supp. 2000). If an indigent

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defendant wishes to petition for a writ of certiorari of a judgment

affirming a criminal conviction, a court-appointed lawyer must represent him in filing the petition. Wilkins v. United States, 441 U.S. 468,

469 (1979); Proffitt v. United States, 549 F.2d 910, 912 (4th Cir.

1976) (remanding § 2255 claim alleging failure to advise of right to

petition for certiorari). This Court’s Internal Operating Procedure

("I.O.P.") 46.3 and Plan in Implementation of the Criminal Justice

Act of 1964 require appointed counsel to inform clients in writing of

the right to petition for certiorari and to file a petition if so requested.

King contends in his sworn pleading that his appointed appellate

attorney did not inform him of the disposition of his criminal appeal.

King provided a copy of a letter received from authorities at a federal

correctional facility denying his request for a legal locker because he

had no case pending on appeal. This letter, which King alleges was

the first notification he received concerning the disposition of his

criminal appeal, was dated more than ninety days following the issuance of our opinion. King also attached copies of his correspondence

with this Court, indicating his prompt inquiry thereafter into the disposition of his appeal, and of this Court’s response, indicating counsel

was required to assist him in petitioning for a writ of certiorari. 

Because King’s counsel died prior to King’s filing his habeas petition, King’s sworn assertion that he was not informed of the disposition of his appeal or if his right to petition the Supreme Court for a

writ of certiorari is uncontroverted. The Government acknowledges it

has no firsthand information from King’s counsel concerning whether

he informed King of the disposition of his appeal. Neither has the

Government obtained the attorney’s case file in King’s case. The

Government responded below that King’s counsel performed adequately in other stages of the proceedings, but acknowledges that if

King’s allegation is true, a hearing is warranted. The Government also

admits, however, that it has not attempted to obtain King’s case file

from the executrix of his attorney’s estate. 

The district court did not make a finding on the genuine issue of

material fact as to whether defense counsel adequately informed King

concerning the disposition of his appeal and his right to seek certiorari. We conclude that if counsel did not advise King of the disposition of his criminal appeal in this court and of the opportunity to seek

UNITED STATES v. KING 3
a writ of certiorari from the Supreme Court, counsel would be ineffective under both prongs of Strickland v. Washington, 466 U.S. 668

(1984). 

The record before us, however, is inadequate to resolve the factual

issue of whether counsel informed King of the disposition of his

appeal and his right to petition the Supreme Court for further review.

The district court should resolve this factual issue in the first instance.

We therefore grant a certificate of appealability on this issue, vacate

the district court’s disposition of this claim, and remand to the district

court for further proceedings. If the district court concludes on

remand that King received ineffective assistance in this respect, King

may then move in this court for our recall and re-issuance of the mandate in his criminal appeal, United States v. King, No. 96-4395, and

for appointment of counsel to assist him with any petition for writ of

certiorari he may wish to file in the Supreme Court in that case. 

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. 

DISMISSED IN PART, VACATED IN PART, AND REMANDED

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