United States District Court, S.D. Georgia, Statesboro Division
G. R. SMITH, Magistrate Judge.
This case illustrates the power of a Court-provided form aimed at avoiding costly hearings. In its opening Order the Court preliminarily reviewed Martell Antwon Mingo's 28 U.S.C. § 2255 motion. CR612-018, doc. 1049, reported at 2014 WL 4702577. In it he claimed that his appointed lawyer, Thomas Charles Rawlings, ignored his instruction that a direct appeal be filed. Doc. 1049 at 3. The Court thus directed Rawlings to respond via affidavit. Id. at 4. Rawlings now swears that he duly consulted with Mingo about his direct appeal rights just after the Court sentenced him. Doc. 1050 at 2. Mingo, he says, signed the Notice - electing not to appeal. Id. at 2-3. Rawlings then handed the Notice to the courtroom deputy to file, but it is not in the record. Id. at 2-3.
The Court then directed Mingo to sign, under 28 U.S.C. § 1746, a statement affirming or rebutting Rawlings' attestations. Doc. 1051. Mingo has complied. His statement, in its entirety:
After being sentenced Thomas Rawlings and I agreed that it was harsh and we were going to oppose the final decision. The only possible way would be with a direct appeal and he said it would be handled in the proper manner. However, after months of waiting to hear from him on the status of my appeal[, ] I subsequently learned that no appeal had been filed as requested. Had I known that Thomas Rawlings was not going to file the appeal on my behalf, I could have filed [it] myself in a timely manner. When Thomas Rawlings and I spoke again[, ] I was well aware that my time limit was up after doing some legal work myself. He stated [that] I waived my rights as part of my plea deal[, ] which is incorrect to my knowledge. He also informed me that I was eligible for the new laws coming into effect. Therefore, I rebut Thomas Rawlings['] statement about me choosing to waive my direct appeal.
Doc. 1057 at 1-2 (footnote added).
Normally, the Court would appoint new counsel for Mingo and direct the Deputy Clerk to schedule an evidentiary hearing to resolve the factual conflict. However, up to this point it has been reviewing Mingo's § 2255 motion under Rule 4(b) of the rules governing 28 U.S.C. § 2255 proceedings. The Government has not been given a chance to respond. ...