United States v. Back, 7:12-3-1-KKC. (2019)
Court: District Court, E.D. Kentucky
Number: infdco20190906902
Visitors: 8
Filed: Sep. 05, 2019
Latest Update: Sep. 05, 2019
Summary: ORDER KAREN K. CALDWELL , District Judge . This matter is before the Court on the Defendant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. 2255 (DE 410). The matter was referred to the magistrate judge who recommends (DE 429) that the motion be granted with respect to the defendant's first claim of ineffective assistance of counsel for failure to file a notice of appeal. The magistrate judge further recommends that the motion be denied as moot with regard to the
Summary: ORDER KAREN K. CALDWELL , District Judge . This matter is before the Court on the Defendant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. 2255 (DE 410). The matter was referred to the magistrate judge who recommends (DE 429) that the motion be granted with respect to the defendant's first claim of ineffective assistance of counsel for failure to file a notice of appeal. The magistrate judge further recommends that the motion be denied as moot with regard to the ..
More
ORDER
KAREN K. CALDWELL, District Judge.
This matter is before the Court on the Defendant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (DE 410). The matter was referred to the magistrate judge who recommends (DE 429) that the motion be granted with respect to the defendant's first claim of ineffective assistance of counsel for failure to file a notice of appeal. The magistrate judge further recommends that the motion be denied as moot with regard to the defendant's second claim of ineffective assistance of counsel, which challenges the reasonableness of his sentence. No party has objected to the recommendation. Further, the Court agrees with its analysis and conclusions as to the § 2255 motion.
The magistrate judge recommends that the Court order defendant Back to move the Sixth Circuit Court of Appeals for permission to proceed in forma pauperis on appeal and for appointment of counsel to represent him on appeal. This Court determined that Back was financially unable to retain defense counsel at the time of his re-sentencing. (DE 382, Order.) Accordingly, pursuant to Federal Rule of Appellate Procedure 24(a)(3), he may proceed on appeal in forma pauperis without any further authorization. Further, until a notice of appeal is filed, this Court has jurisdiction to appoint counsel to represent Back on appeal. Accordingly, the Court hereby ORDERS as follows:
1) For the reasons stated in the magistrate judge's report and recommendation (DE 429), Defendant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (DE 410) is GRANTED in part and DENIED in part as follows:
a) the motion is GRANTED as to defendant's claim that his counsel was ineffective for failing to file a notice of appeal; and
b) the motion is DENIED as moot as to the defendant's claim that his counsel was ineffective for failing to object to the procedural and substantive reasonableness of his sentence;
2) The August 1, 2017 amended judgment (DE 404) is VACATED;
3) The Court will enter an amended judgment reimposing the same sentence;
4) The Clerk of Court is DIRECTED TO FILE a notice of appeal on Defendant Back's behalf within fourteen (14) days from the entry date of the Amended Judgment;
5) Prior to filing the notice of appeal, the Clerk of the Court is DIRECTED to appoint counsel to represent Defendant Back on appeal; and
6) Pursuant to Federal Rule of Appellate Procedure 24(a)(3), Defendant Back may proceed on appeal in forma pauperis.
Source: Leagle
