Filed: Jul. 30, 2015
Latest Update: Jul. 30, 2015
Summary: REPORT AND RECOMMENDATION H. BRUCE GUYTON , Magistrate Judge . This case is before the Court on Petitioner Porfirio Rojas' pro se motion [Doc. 509] to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. On June 8, 2015, Chief United States District Judge Thomas A. Varlan referred [Doc. 555] the matter to the United States Magistrate Judge for (1) an evidentiary hearing "limited solely to the issue of whether counsel [Attorney Ursula Bailey] failed to file a requested
Summary: REPORT AND RECOMMENDATION H. BRUCE GUYTON , Magistrate Judge . This case is before the Court on Petitioner Porfirio Rojas' pro se motion [Doc. 509] to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. On June 8, 2015, Chief United States District Judge Thomas A. Varlan referred [Doc. 555] the matter to the United States Magistrate Judge for (1) an evidentiary hearing "limited solely to the issue of whether counsel [Attorney Ursula Bailey] failed to file a requested a..
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REPORT AND RECOMMENDATION
H. BRUCE GUYTON, Magistrate Judge.
This case is before the Court on Petitioner Porfirio Rojas' pro se motion [Doc. 509] to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On June 8, 2015, Chief United States District Judge Thomas A. Varlan referred [Doc. 555] the matter to the United States Magistrate Judge for (1) an evidentiary hearing "limited solely to the issue of whether counsel [Attorney Ursula Bailey] failed to file a requested appeal," (2) to appoint counsel to represent the Petitioner "solely as to this issue," and (3) to make a recommendation on a certificate of appealability as to this and all issues1 raised in the Petitioner's section 2255 motion. Magistrate Judge C. Clifford Shirley, Jr., appointed [Doc. 556] Attorney James H. Varner, Jr., to represent the Petitioner and scheduled the evidentiary hearing for July 30, 2015. The parties appeared before the undersigned2 on that date. Mr. Varner appeared along with Petitioner Rojas, who participated with the aid of an interpreter. Assistant United States Attorney Tracy L. Stone represented the Government.
At the July 30 hearing, Mr. Varner informed the Court that he had consulted with Petitioner Rojas, who wanted to withdraw the remaining claim of ineffective assistance of counsel as well as "all aspects" of his section 2255 motion. Mr. Varner said that the Defendant is near the end of his sentence and intends to pursue another avenue of relief.3 He stated that Petitioner Rojas wanted the section 2255 motion to be dismissed with prejudice and that the Petitioner understood that he would not be able raise the issues raised in his section 2255 motion again. The Court questioned the Petitioner, who stated that he understood his attorney's comments and agreed with them. AUSA Stone stated that the Government had nothing to add on the matter.
The Court finds that the Defendant has knowingly and voluntarily withdrawn all claims of ineffective assistance of counsel raised in his section 2255 motion, including his allegation that he instructed Attorney Bailey to file a direct appeal on his behalf. Accordingly, because the Defendant is no longer pursuing his section 2255 motion, the undersigned respectfully RECOMMENDS the District Judge accept Petitioner Rojas's withdrawal of his motion and dismiss the section 2255 motion [Doc. 509] with prejudice. The Court also RECOMMENDS that no certificate of appealability issue for this case because Petitioner Rojas is no longer pursuing his constitutional claims of the ineffective assistance of counsel. See 28 U.S.C. § 2253(c)(2) (providing that a "certificate of appealability may issue [in a section 2255 proceeding] only if the applicant has made a substantial showing of the denial of a constitutional right"). Because the Petitioner has knowingly and voluntarily withdrawn his section 2255 motion, the undersigned finds that any appeal of the dismissal of his motion would be frivolous and not taken in good faith.4
