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Nnebe v. United States

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Argued: November 29, 2007

Before: JACOBS, Chief Judge, B.D. PARKER and WESLEY, Circuit Judges.

Michael Nnebe appeals from a judgment of the United States District Court for the Southern District of New York (Scheindlin, J.), denying hismotion pursuant to 28 U.S.C. § 2255 to vacate his sentence, ostensibly to permit him to petition for certiorari review. This appeal presents the issue of what relief is available when, in violation of our rules implementing the Criminal Justice Act, 18 U.S.C. § 3006A, appellate counsel promises to file a certiorari petition, but fails to do so. We conclude that Nnebe is entitled to pursue certiorari review. Consequently, in accordance with the procedures prescribed in Wilkins v. United States, 441 U.S. 468 (1979), we construe the appeal as a motion to recall the mandate, grant the motion, vacate the judgment, and remand to the district court.

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