Filed: Aug. 14, 2019
Latest Update: Aug. 14, 2019
Summary: ORDER STEVE C. JONES , District Judge . Presently before the Court is the Magistrate Judge's Report and Recommendation (R&R) recommending that the pending 28 U.S.C. 2255 motion to vacate be granted in part (limited to Movant's contention that she is entitled to a direct appeal of her conviction and/or sentence) and denied in part without prejudice as to the remainder of her claims. [Doc. 39]. Neither the Government nor Movant have filed objections in response to the R&R. A district judge
Summary: ORDER STEVE C. JONES , District Judge . Presently before the Court is the Magistrate Judge's Report and Recommendation (R&R) recommending that the pending 28 U.S.C. 2255 motion to vacate be granted in part (limited to Movant's contention that she is entitled to a direct appeal of her conviction and/or sentence) and denied in part without prejudice as to the remainder of her claims. [Doc. 39]. Neither the Government nor Movant have filed objections in response to the R&R. A district judge ..
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ORDER
STEVE C. JONES, District Judge.
Presently before the Court is the Magistrate Judge's Report and Recommendation (R&R) recommending that the pending 28 U.S.C. § 2255 motion to vacate be granted in part (limited to Movant's contention that she is entitled to a direct appeal of her conviction and/or sentence) and denied in part without prejudice as to the remainder of her claims. [Doc. 39]. Neither the Government nor Movant have filed objections in response to the R&R.
A district judge has broad discretion to accept, reject, or modify a magistrate judge's proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 680 (1980). Pursuant to 28 U.S.C. § 636(b)(1), in the absence of objections, the Court reviews R&R under a "clearly erroneous" standard.
Having so reviewed the R&R, this Court holds that the Magistrate Judge's findings and conclusions are correct. Accordingly, the R&R, [Doc. 39], is hereby ADOPTED as the order of this Court, and the § 2255 is GRANTED IN PART, but only with respect to her claim that her counsel failed to protect her right to an appeal, and a restoration of Movant's appeal rights is hereby GRANTED. The remainder of Movant's claims are DISMISSED without prejudice so that Movant may reassert those claims, if necessary, in her appeal and in a subsequent § 2255 motion. See United States v. Frank, 353 F. App'x 305, 307 (11th Cir. 2009). The Government's partial motion to dismiss, [Doc. 37], is DENIED as moot.
According to the Eleventh Circuit,
[w]hen the district courts of this circuit conclude that an out-of-time appeal in a criminal case is warranted as the remedy in a § 2255 proceeding, they should effect that remedy in the following way: (1) the criminal judgment from which the out-of-time appeal is to be permitted should be vacated; (2) the same sentence should then be reimposed; (3) upon reimposition of that sentence, the defendant should be advised of all the rights associated with an appeal from any criminal sentence; and (4) the defendant should also be advised that the time for filing a notice of appeal from that re-imposed sentence is ten days, which is dictated by Rule 4(b)(1)(A)(i).
United States v. Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000).
Accordingly, to effectuate the relief granted, the judgment and sentence entered in this matter is hereby VACATED and REIMPOSED as of the date hereof with credit for all time served and any amounts that may have been paid for restitution, fine and/or special assessment.
Defendant is advised that:
(a) she has the right to an appeal;
(b) if she is unable to pay the cost of an appeal, she may apply for in forma pauperis status to pursue the appeal;
(c) if she so requests, the Clerk of this Court will prepare and file a notice of appeal on her behalf;
(d) she has the right to counsel on appeal and, if she cannot afford counsel, an attorney will be appointed to represent her; and
(e) with few exceptions, any notice of appeal must be filed within fourteen days of the date the Court reimposes its sentence.
The Clerk is DIRECTED to close civil action number 1:18-CV-4007-SCJ.
IT IS SO ORDERED.
