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Jiles v. United States

United States District Court, S.D. Georgia, Savannah Division

April 27, 2017

RICHAED A. JILES, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

         In response to Richard A. Jiles' 28 U.S.C. § 2255 motion, the Court directed him to file his missing signature page (he has) and the United States to respond, particularly to his "lost-appeal" claim.[1] Jiles v. United States, 2017 WL 942117 at * 2 (S.D. Ga. Mar. 10, 2017). The Government conceded that Jiles is entitled to an evidentiary hearing on whether he asked his appointed lawyer, Charles V. Loncon, to appeal his conviction.[2] CR415-194, doc. 36 at 5-6. The Court directed Loncon to explain why the record is bereft of the "NOTICE OF COUNSEL'S POSTCONVICTION OBLIGATIONS" form that it had distributed to him upon his initial appearance.[3] Doc. 37 (citing doc. 12).

         In his 28 U.S.C. § 1746 Declaration, Loncon insists he fully consulted with Jiles, who then elected not to appeal. Doc. 38-1 at 4. Loncon then declares:

I had printed the Notice of Counsel Post-Conviction Obligations and brought it to Court for sentencing. My recollection of the events is simply that I reviewed the waiver with Mr. Jiles following sentencing, obtain[ed] his signature, and handed that form to the courtroom clerk.

Id¶ 15.

         The "Clerk's Minutes" of the Sentencing Hearing make no mention of the Notice. Doc. 24. Nor does that deputy recall Loncon handing to her Jiles' executed Notice form. For that matter, the preprinted portion of the Notice reminded Loncon that:

[c]ounsel must file this form in the trial-court record of the defendant's case within ten business days following its completion. Attach this as the second page of a document bearing the caption of your client's case with this title: "POST-CONVICTION CONSULTATION CERTIFICATION."

Doc. 12 (Notice) at 4.[4]

         Meanwhile, it costs movants like Jiles nothing to file a § 2255 motion (since it's a motion in a criminal case, there is no fee), [5] and it is far too easy to casually lie about such matters. Hence, it is worth eliciting written declarations from such movants ahead of any evidentiary hearing. See Mingo v. United States, 2014 WL 5393575 (S.D. Ga. Oct. 23, 2014) (sending movant a special 28 U.S.C. § 1746 Declaration form for him to "affirm or rebut" his appointed lawyer's assertions on his claim that counsel ignored his directive to file an appeal), cited in Marshall v. United States, 2015 WL 3936033 at * 2 (S.D. Ga. June 26, 2015) ("It is this Court's practice to request sworn affidavits or 28 U.S.C. § 1746 Declarations from allegedly errant lawyers and movants before a hearing.").[6]

         Within 21 days of the date this Order is served, Jiles shall complete and place within his prison's mail system the attached "Mingo Statement, " on which he shall affirm or rebut each and every paragraph of Loncon's Declaration (the Clerk shall send him an extra copy of that with this Order).[7] The Court is particularly interested in his response to paragraphs 14 and 15. He is free to abandon this matter by moving to dismiss his § 2255 motion, or by simply not responding ~ thus triggering a non-prosecution dismissal under Fed.R.Civ.P. 41(b).[8]

SO ORDERED

         RICHARD A. JILES STATEMENT

         NOTE: ATTACH ANY NEEDED ADDITIONAL PAGES. THEY WILL BE INCORPORATED HERE, AND THUS SUBJECT TO 28 U.S.C. § 1746.

         Pursuant to 28 U.S.C. § 1746, I declare, under penalty of perjury, that the foregoing is true and correct and that this was ...


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