Terry v. U.S., 5:13-CR-76-FL-1 (2018)
Court: District Court, E.D. North Carolina
Number: infdco20180521837
Visitors: 16
Filed: May 18, 2018
Latest Update: May 18, 2018
Summary: ORDER LOUISE W. FLANAGAN , District Judge . This matter is before the court on the Memorandum and Recommendation ("M&R") of United States Magistrate Judge Kimberly A. Swank, regarding the petitioner's motion to vacate under 28 U.S.C. 2255 (DE 92), and the government's motion to dismiss (DE 101). After holding an evidentiary hearing on petitioner's claim that he was deprived of right to assistance of counsel in noticing appeal, the magistrate judge recommends granting petitioner's motion o
Summary: ORDER LOUISE W. FLANAGAN , District Judge . This matter is before the court on the Memorandum and Recommendation ("M&R") of United States Magistrate Judge Kimberly A. Swank, regarding the petitioner's motion to vacate under 28 U.S.C. 2255 (DE 92), and the government's motion to dismiss (DE 101). After holding an evidentiary hearing on petitioner's claim that he was deprived of right to assistance of counsel in noticing appeal, the magistrate judge recommends granting petitioner's motion on..
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ORDER
LOUISE W. FLANAGAN, District Judge.
This matter is before the court on the Memorandum and Recommendation ("M&R") of United States Magistrate Judge Kimberly A. Swank, regarding the petitioner's motion to vacate under 28 U.S.C. § 2255 (DE 92), and the government's motion to dismiss (DE 101). After holding an evidentiary hearing on petitioner's claim that he was deprived of right to assistance of counsel in noticing appeal, the magistrate judge recommends granting petitioner's motion on this claim, vacating the judgment, and entering a new judgment from which appeal may be taken. No objections to the M&R have been filed, and the time within which to make any objection has expired.
Upon careful review of the M&R and of the record generally, having found no clear error, the court hereby ADOPTS the recommendation of the magistrate judge as its own, and, for the reasons stated therein, the government's motion to dismiss is DENIED, and petitioner's motion is GRANTED. Petitioner's motion to reinstate direct appeal rights (DE 88) is DISMISSED AS MOOT. The court VACATES its judgment entered July 9, 2014, and DIRECTS the clerk to enter a new judgment from which appeal may be taken.
SO ORDERED.
Source: Leagle
