United States District Court, S.D. Georgia, Savannah Division
RICHAED A. JILES, Movant,
UNITED STATES OF AMERICA, Respondent.
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. 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. 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. Doc. 37 (citing doc. 12).
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.
"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
Doc. 12 (Notice) at 4.
it costs movants like Jiles nothing to file a § 2255
motion (since it's a motion in a criminal case,
there is no fee),  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
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). 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.
A. JILES STATEMENT
ATTACH ANY NEEDED ADDITIONAL PAGES. THEY WILL BE INCORPORATED
HERE, AND THUS SUBJECT TO 28 U.S.C. § 1746.
to 28 U.S.C. § 1746, I declare, under penalty of
perjury, that the foregoing is true and correct and that this