46 F3d 1129 United States v. Thomas

46 F.3d 1129

UNITED STATES of America, Plaintiff-Appellee,
v.
Anthony Vanzetti THOMAS, Defendant-Appellant.

No. 94-6706.

United States Court of Appeals, Fourth Circuit.

Submitted Dec. 20, 1994.
Decided Jan. 12, 1995.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CR-87-175-A)

Anthony Vanzetti Thomas, Appellant Pro Se. Michael R. Smythers, Assistant United States Attorney, Norfolk, VA, for Appellee.

E.D.Va.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Before WILKINSON, HAMILTON, and MOTZ, Circuit Judges.

OPINION

PER CURIAM:

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1

Appellant appeals from the district court's order denying his 28 U.S.C. Sec. 2255 (1988) motion as frivolous under 28 U.S.C. Sec. 1915(d) (1988). We affirm in part, vacate in part, and remand.

2

The district court found that Appellant's claim that he was not advised of the outcome of his appeal and informed of his right to file a petition for rehearing in this Court or for writ of certiorari in the Supreme Court did not state a claim of ineffective assistance of counsel. However, this Court has held that counsel must take these actions when an appeal is adverse to a criminal appellant. Proffitt v. United States, 549 F.2d 910, 913 (4th Cir.1976), cert. denied, 429 U.S. 1076 (1977). The record does not disclose whether Appellant's attorney informed him that his convictions were affirmed on appeal or that he could petition the Supreme Court for writ of certiorari. Thus, because this claim has arguable basis in law and fact, the district court improperly denied this claim as frivolous under Sec. 1915(d). See Nietzke v. Williams, 490 U.S. 319, 327 (1989). We therefore vacate this portion of the order and remand it for further proceedings.

3

The district court, however, properly found from the record that Appellant's claim of prosecutorial misconduct through subornation of perjury was without any factual basis. Thus, we affirm the court's denial of this claim.* We deny Appellant's motion for default judgment. 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.

4

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

*

Appellant attempts to raise additional issues in his informal brief filed in this Court. We have not considered those claims because they are newly raised on appeal and, therefore, are not properly before this Court. Singleton v. Wulff, 428 U.S. 106, 120 (1976)

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