Filed: Sep. 22, 2014
Latest Update: Sep. 22, 2014
Summary: ORDER G.R. SIMTH, Magistrate Judge. Martell Antwon Mingo pled guilty to Count 1 of a drug conspiracy indictment (docs. 839 & 852) 1 and waived his direct appeal and collateral review rghts. 2 His counsel, however, failed to file a Notice of Post-Conviction Consultation Certification ("Notice") — something routinely filed in cases before this Court. See, e.g., United States v. Smith, CR614-012, doc. 26 (S.D. Ga. Sept. 4, 2014). As explained in Eason v. United States, 2014 WL 4384652 (S.
Summary: ORDER G.R. SIMTH, Magistrate Judge. Martell Antwon Mingo pled guilty to Count 1 of a drug conspiracy indictment (docs. 839 & 852) 1 and waived his direct appeal and collateral review rghts. 2 His counsel, however, failed to file a Notice of Post-Conviction Consultation Certification ("Notice") — something routinely filed in cases before this Court. See, e.g., United States v. Smith, CR614-012, doc. 26 (S.D. Ga. Sept. 4, 2014). As explained in Eason v. United States, 2014 WL 4384652 (S.D..
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ORDER
G.R. SIMTH, Magistrate Judge.
Martell Antwon Mingo pled guilty to Count 1 of a drug conspiracy indictment (docs. 839 & 852)1 and waived his direct appeal and collateral review rghts.2 His counsel, however, failed to file a Notice of Post-Conviction Consultation Certification ("Notice") — something routinely filed in cases before this Court. See, e.g., United States v. Smith, CR614-012, doc. 26 (S.D. Ga. Sept. 4, 2014).
As explained in Eason v. United States, 2014 WL 4384652 (S.D. Ga. Sept. 3, 2014) and Ortega v. United States, 2014 WL 3012657 (S.D. Ga. July 2, 2014), lawyers have a duty to consult with their client about taking a direct appeal — even in appeal-waiver cases. See Ortega, 2014 WL 3012657 at *1 n. 2 (collecting cases); United States v. Henderson, 2014 WL 4063930 at *2 (E.D. La. Aug. 13, 2014) (citing this Court's Notice form in granting a second-chance appeal: "It is clear that, even though Henderson waived virtually all of his post-conviction and appellate rights, his counsel's failure to file a requested notice of appeal constitutes per se ineffective assistance of counsel.").
Every lawyer's failure to do so (and file the Notice proving that fact) can result in costly evidentiary hearings and "second-chance appeals." Hayes v. United States, 2011 WL 3468799 at * 5 n. 5 (S.D. Ga. Aug. 9, 2011) ("It is not difficult to estimate that § 2255 motions like this cost the taxpayers $10,000 or more, and in a time of record national debt."), adopted, 2011 WL 4704219 (S.D. Ga. Oct. 6, 2011). The costs associated with conducting the hearing (appointment of counsel for defendant, transporting him from a distant prison, burdening the court's time and limited resources) are avoided where defense counsel simply files the Notice reflecting his client's wishes regarding an appeal.").
Here the Court once again is faced with a double-waiver convict claiming he asked his lawyer to file a direct appeal yet was ignored. Doc. 1048 at 4 (Ground One: "Failure of counsel to file direct appeal when asked to do so was prejudicial.").3 In contrast to Ortega, the docket here does not reflect that the Clerk furnished attorney Thomas Charles Rawlings with a copy of the Notice at the sentencing hearing (that of course does not excuse him from upholding his duty to consult). On the other hand, and evidently because of Mingo's double-waiver, there is no sentencing hearing transcript that perhaps might show that the sentencing judge distributed the Notice to counsel.4
The Court DIRECTS Rawlings to attest whether he upheld his duty to confer. He must detail what became of the Notice (did he receive one, was he otherwise aware of its existence, and if so, why was it not timely filed?). That affidavit is due (the government shall ensure that he files it) within 14 days of the date this Order is served. Reed v. United States, 2014 WL 1347455 at * 2 (S.D. Ga. Apr. 4, 2014), cited in Henderson, 2014 WL 4063930 at * 2. Mingo, who signed his § 2255 motion under penalty of perjury, doc. 1048 at 13, is reminded that § 2255 movants who lie to this Court may be prosecuted.5
SO ORDERED.