United States v. Ellis

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 96-7847

DAVID ELLIS, a/k/a Tree, Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, District Judge. (CR-91-14, CA-96-725-5-F)

Submitted: July 2, 1998

Decided: July 20, 1998

Before NIEMEYER and HAMILTON, Circuit Judges, and HALL, Senior Circuit Judge.

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Dismissed in part and remanded in part by unpublished per curiam opinion.

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COUNSEL

David Ellis, Appellant Pro Se. Fenita Morris Shepard, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

_________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

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OPINION

PER CURIAM:

David Ellis appeals the district court's order to the extent it denied his claims that counsel was ineffective for not requesting a downward departure for his allegedly minor role in the conspiracy and for not objecting to his criminal history calculation. To the extent that the dis- trict court denied Appellant's § 2255 motion as to his claim that coun- sel was ineffective for not requesting a downward departure for his allegedly minor role in the conspiracy, we have reviewed the record and the district court's opinion and find no reversible error. United States v. Ellis, Nos. CR-91-14; CA-96-725-5-F (E.D.N.C. Nov. 20, 1996). Accordingly, we deny a certificate of appealability on this issue and dismiss the appeal substantially on the reasoning of the dis- trict court.

Next, Ellis claims that the district court erred in not addressing his claim that counsel was ineffective for not objecting to his criminal history calculation. We find that the district court did not make a find- ing of ineffective assistance of counsel on this issue. Accordingly, we grant a certificate of appealability and remand the case for a finding on this issue and for further proceedings as required. We dispense with oral argument because the facts and legal contentions are ade- quately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED IN PART; REMANDED IN PART