UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-7489

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LUIS TEJEDA-RAMIREZ,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Greenville. Henry M. Herlong, Jr., Senior

District Judge. (6:06-cr-00393-HMH-1)

Submitted: April 21, 2011 Decided: June 28, 2011

Before MOTZ, KING, and DAVIS, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Luis Tejeda-Ramirez, Appellant Pro Se. Alan Lance Crick, 

Assistant United States Attorney, Greenville, South Carolina, 

for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Luis Tejeda-Ramirez appeals a district court order 

finding that his appellate counsel timely informed him of his 

right to file a petition for writ of certiorari. Because 

Tejeda-Ramirez was not given an opportunity to respond to 

appellate counsel’s affidavit, we vacate the court’s order and 

remand. 

In United States v. Tejeda-Ramirez, No. 10-6188, 2010 

WL 2182187 (4th Cir. June 2, 2010) (unpublished), we granted a 

certificate of appealability on the issue of whether TejedaRamirez’s appellate counsel failed to timely inform him in 

writing of his right to file a petition for writ of certiorari 

after receiving an adverse decision from this court. We vacated 

the district court’s order in part, and remanded for the purpose 

of having the court make factual findings regarding this issue.*

On remand, the district court directed the Government 

to submit an affidavit by Tejeda-Ramirez’s appellate counsel 

responding to the issue of whether he failed to timely inform 

Tejeda-Ramirez of his right to file a petition for writ of 

certiorari. On August 25, 2010, the Government filed a 

response. Attached to the response was counsel’s affidavit and 

 * We denied a certificate of appealability as to the 

remaining issues.
3

copies of two letters addressed to Tejeda-Ramirez from counsel. 

The first letter was dated December 20, 2007, and the second was 

dated January 18, 2008. Both letters were addressed to TejedaRamirez at the FCI in Yazoo City, Mississippi. 

In the letter dated January 18, 2008, counsel informed 

Tejeda-Ramirez that he must advise counsel in writing of his 

desire to petition the United States Supreme Court for a writ of 

certiorari. The letter further informed Tejeda-Ramirez that he 

must also indicate the grounds for seeking review. Counsel 

further indicated that if he agreed that the grounds were valid, 

he had an obligation to prepare such a petition and that if he 

did not agree, he would file a motion in this court to withdraw. 

Counsel also indicated that the petition must be filed prior to 

March 1, 2008. 

By order entered August 27, 2010, or two days after 

the Government filed its response, the district court noted that 

the Government submitted counsel’s affidavit and copies of the 

two letters timely informing Tejeda-Ramirez of his right to file 

a petition for writ of certiorari. Based on the letters, the 

court found that counsel fulfilled his duties under the CJA and 

that he was not ineffective in this regard. Given the short 

period of time between the Government’s filing and the court’s 

order, Tejeda-Ramirez did not file a response to counsel’s 

affidavit. 
4

In a similar situation, when a party moves for summary 

judgment against a pro se party, this court requires that the 

pro se party be given notice of the opportunity to file a 

counter-affidavit or other appropriate materials and is informed 

that failure to file such materials could result in dismissal. 

See Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975). We 

conclude that in this instance, Tejeda-Ramirez should have been 

given an opportunity to respond to appellate counsel’s 

affidavit. Accordingly, we vacate the district court’s order 

and remand. On remand, the district court should give TejedaRamirez notice that he may file an affidavit or other 

appropriate materials and that the failure to file such a 

response could result in dismissal of the action. 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