UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-6886

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN JOHNSON TERRELL, II,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. James C. Cacheris, Senior

District Judge. (1:06-cr-00493-JCC-1; 1:09-cv-00846-JCC)

Submitted: December 7, 2010 Decided: December 21, 2010

Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

John Johnson Terrell, II, Appellant Pro Se. William H. Jones, 

II, Special Assistant United States Attorney, Alexandria, 

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM: 

John Johnson Terrell, II, appeals the district court's 

order denying relief on his 28 U.S.C.A § 2255 (West Supp. 2010) 

motion. We vacate and remand for further proceedings.

Terrell pleaded guilty to one count of possession with 

intent to distribute five grams or more of crack cocaine, in 

violation of 21 U.S.C. § 841(a)(1) (2006), and to possession of 

a firearm in furtherance of a drug trafficking crime, in 

violation of 18 U.S.C. § 924(c) (2006). Terrell was sentenced 

as a career offender to a total of 262 months of imprisonment. 

Judgment was entered on March 9, 2007. There is conflicting 

evidence as to whether Terrell directed his attorney, 

Brisendine, to file a direct appeal. Terrell claims he 

repeatedly attempted to contact Brisendine, and Brisendine never 

responded. Brisendine avers he never received any of Terrell’s 

letters and was never instructed to file an appeal. 

After learning an appeal had never been filed in his 

case, Terrell filed a § 2255 motion. However, by the date the 

motion was filed, the Antiterrorism and Effective Death Penalty 

Act of 1996 (“AEDPA”) statute of limitations had run. 28 U.S.C. 

§ 2255(f) (2006). Although Terrell argued for equitable tolling 

of the statute of limitations, the district court found that 

such tolling was inapplicable. The court, however, granted a 
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certificate of appealability as to its resolution of the 

applicability of equitable tolling.

After the district court issued its order, the Supreme 

Court issued its decision in Holland v. Florida, 130 S. Ct. 2549 

(2010). Holland affirmed that equitable tolling applies to the 

AEDPA’s statute of limitations. Id. at 2554. Specifically, the 

Court found that, in order to be entitled to equitable tolling, 

the movant must show (1) that he has diligently pursued his 

rights and (2) that some extraordinary circumstance prevented 

the timely filing. Id. at 2562. The Court also discussed 

whether attorney misconduct could satisfy the “extraordinary 

circumstance” requirement. Id. at 2564-65. Answering the 

question in the affirmative, the Court held that, while the 

attorney misconduct must be more egregious than a “‘garden 

variety claim of excusable neglect,’” the requirement might be 

met by a showing of an extraordinary failure by the attorney to 

provide reasonably competent legal work, to communicate with his 

client, to implement his client’s reasonable request, to keep 

his clients informed of key developments in their cases, and to 

never abandon a client. Id. at 2564 (quoting Irwin v. Dep’t of 

Veterans Affairs, 498 U.S. 89, 96 (1990)). 

Because the district court did not have the benefit of 

Holland when it considered Terrell’s motion, and because there 

is conflicting evidence in the record as to both prongs of the 
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Holland analysis, we vacate the district court’s order and 

remand for further proceedings consistent with Holland. 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