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Jiles v. United States

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

May 24, 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 POST-CONVICTION OBLIGATIONS" form that it had distributed to him upon his initial appearance.[3] Doc. 37 (citing doc. 12).

         Loncon claimed he fully consulted with Jiles, who then elected not to appeal. Doc. 38-1 at 4. Loncon then represented to this Court:

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, 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 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, 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.").

         It thus directed Jiles to affirm or rebut each and every paragraph of Loncon's Declaration.[6] 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 other things.
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).

         The two 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).

         Jiles 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 ...


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