Brown v. U.S., 1:16-CR-0285-SCJ-JKL-01 (2018)
Court: District Court, N.D. Georgia
Number: infdco20180809986
Visitors: 22
Filed: Aug. 08, 2018
Latest Update: Aug. 08, 2018
Summary: MOTION TO VACATE 28 U.S.C. 2255 STEVE C. JONES , District Judge . ORDER This matter is before the Court for consideration of the Final Report and Recommendation of Magistrate John K. Larkins, III [Doc. No. 123], to which no objections have been filed. After reviewing the Report & Recommendation, it is received with approval and ADOPTED as the Opinion and Order of this Court. Accordingly, Movant's motion to vacate his conviction under 28 U.S.C. 2255 motion [Doc. No. 121] is GRANTED
Summary: MOTION TO VACATE 28 U.S.C. 2255 STEVE C. JONES , District Judge . ORDER This matter is before the Court for consideration of the Final Report and Recommendation of Magistrate John K. Larkins, III [Doc. No. 123], to which no objections have been filed. After reviewing the Report & Recommendation, it is received with approval and ADOPTED as the Opinion and Order of this Court. Accordingly, Movant's motion to vacate his conviction under 28 U.S.C. 2255 motion [Doc. No. 121] is GRANTED ..
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MOTION TO VACATE 28 U.S.C. § 2255
STEVE C. JONES, District Judge.
ORDER
This matter is before the Court for consideration of the Final Report and Recommendation of Magistrate John K. Larkins, III [Doc. No. 123], to which no objections have been filed. After reviewing the Report & Recommendation, it is received with approval and ADOPTED as the Opinion and Order of this Court.
Accordingly, Movant's motion to vacate his conviction under 28 U.S.C. § 2255 motion [Doc. No. 121] is GRANTED for the sole purpose of reinstating his appeal rights. To effectuate that relief, pursuant to United States v. Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000), it is hereby ORDERED that:
1. The sentence imposed pursuant to this Court's Judgment and Commitment as entered February 28, 2017 [Doc. No. 120] is hereby VACATED;
2. This matter is set for a RESENTENCING HEARING on TUESDAY, OCTOBER 9TH, 2018 AT 10:30 A.M., in Courtroom 1907, United States Courthouse, 75 Spring Street, S.W., Atlanta, Georgia. As the defendant is presently in the custody of the Bureau of Prisons, the Office of the United States Attorney shall issue the necessary papers to have defendant present at this hearing; and
3. During said hearing this Court will REIMPOSE the sentence of imprisonment, supervised release, and special assessment imposed by this Court on February 28, 2017, with appropriate credit for time served and ADVISE Movant that: (a) he has the right to an appeal; (b) if he is unable to pay the cost of an appeal, he may apply for in forma pauperis status to pursue the appeal; (c) if he so requests, the Clerk of this Court will prepare and file a notice of appeal on his behalf; (d) he has the right to counsel on appeal and, if he cannot afford counsel, an attorney will be appointed to represent him; and (e) any notice of appeal must be filed within fourteen days of the date the Court reimposes its sentence in this case.
It is further ORDERED that the other claim in Movant's § 2255 motion be DISMISSED WITHOUT PREJUDICE so that Movant may reassert that claim, if necessary, after the conclusion of his appeal. See UnitedStates v. Frank, 353 F. App'x 305, 307 (11th Cir. 2009) ("[T]he best approach is for the district court to dismiss the collateral claims without prejudice if it grants an out-of-time appeal. . . ." (quotation marks omitted)).
IT IS SO ORDERED.
Source: Leagle
