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
POST-CONVICTION OBLIGATIONS" form that it had
distributed to him upon his initial appearance. Doc. 37 (citing
claimed he fully consulted with Jiles, who then elected not
to appeal. Doc. 38-1 at 4. Loncon then represented to this
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.
"Clerk's Minutes" of the Sentencing Hearing,
however, bear no mention of the Notice. Doc. 24. Nor does
that deputy recall Loncon handing to her Jiles' executed
Notice form. And 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, the Court has routinely elicited
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.").
directed Jiles to affirm or rebut each and every paragraph of
Loncon's Declaration. Jiles v. United States, 2017
WL 1536488 at * 3 (S.D. Ga. Apr. 27, 2017). Here is his
written response, in its entirety:
I stated that I told my Plea Lawyer Mr. Loncon prior to my
sentencing hearing and after the hearing that I wanted to
appeal my sentence, especially the enhance sentence based on
what I believe to be unqualifying prior convictions, among
Mr. Loncon told me that he would get back with me on the
issue of an appeal. In opposite Mr. Loncon never consulted
with me on the issue of an appeal. He never visited the
Chatham County Jail (see visitation log). I never signed any
documentation stating that I voluntarily waived my rights to
a first appeal nor did I tell Mr. Loncon I did not want to
appeal my sentence. I never heard from attorney Loncon after
my conviction and sentencing and I expressly told him I
wanted to appeal.
Doc. 40 at 1-2 (unedited).
accounts of what happened here cannot be reconciled. Jiles,
whose guilty-plea agreement contains no appeal waiver, doc.
19, is therefore entitled to an evidentiary hearing.
Williams v. United States, 660 F.App'x 847, 849
(11th Cir. 2016) (hearing required upon § 2255
movant's allegation that he received ineffective
assistance of counsel because his attorney failed to file the
notice of appeal that movant requested; although prisoner
signed plea agreement with appeal waiver, he did not waive
all of his appellate rights).
is entitled to new counsel for the hearing and any appeal.
See 28 U.S.C. § 2255 Rule 8(c); 18 U.S.C.
§ 3006A; Nguyen v. United States, 487
F.App'x 484, 4845 (11th Cir. 2012) (directing district
court to appoint counsel for § 2255 movant, then resolve
ineffective-assistance claim during required evidentiary
hearing); Reed v. United States, 2014 WL 1347455 at
* 2 n. 7 ...