United States District Court, S.D. Georgia, Savannah Division
RICHARD A. JILES, Movant,
UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
explained in Jiles v. United States, __F.Supp.3d__,
2017 WL 942117 at * 2 (S.D. Ga. Mar. 10, 2017), Richard A.
Jiles moves for 28 U.S.C. § 2255 relief. CR415-104, doc.
32. He alleges that his appointed counsel, Charles V. Loncon,
provided him with ineffective assistance when he missed some
issues at sentencing, id. at 9-16, then failed to
abide Jiles' request to appeal his 18 U.S.C. §
922(g)(1) conviction. Id. at 9 (claiming IAC because
Loncon “failed to pursue an appeal upon his request for
his lawyer to do so. . . .”).
directing additional submissions aimed at sharpening the
factual issues, Jiles v. United States, 2017 WL
1536488 (S.D. Ga. Apr. 2, 2017); Jiles v. United
States, 2017 WL 2265192 (S.D. Ga. May 24, 2017), the
Government (with Loncon's tacit concurrence) stipulated,
at the June 7, 2017 hearing, that Loncon provided ineffective
assistance by counseling Jiles against taking an appeal based
on a nonexistent appeal waiver. Compare
doc. 38-1 at 4 ¶14 (Loncon's Declaration that he
counseled against an appeal based on his mistaken belief that
the Plea Agreement contained an appeal waiver), with
doc. 19 (Plea Agreement containing no such waiver). Hence,
the Government concedes the new-appeal relief Jiles seeks,
obviating the need to resolve the “Notice”
Court agrees. Defendant's § 2255 motion (doc. 32)
therefore should be GRANTED so that he may
pursue an out-of-time direct appeal. Pursuant to United
States v. Phillips, 225 F.3d 1198, 1201 (11th Cir.
2000): (1) the judgment in movant's criminal case should
be vacated; (2) the Court should enter a new judgment
imposing the same sentence; (3) movant should be informed of
all of his rights associated with filing an appeal of his
re-imposed sentence, and (4) movant should be advised that he
has 14 days from the date of the reimposition of his sentence
to file a timely appeal in accordance with Rule 4(b)(1)(A)(i)
of the Federal Rules of Appellate Procedure. Id.
Jiles affirms (his § 2255 motion) that he wants to
appeal, his new lawyer (Howard W. Anderson, III) shall timely
file a new Notice of Appeal. See United States v.
Doyle, __F.3d__, 2017 WL 2274007 at *2 (11th Cir. May
25, 2017) (Phillips remedy for defense counsel's
alleged ineffectiveness in failing to file direct appeal from
the sentence imposed as defendant requested, is limited to
district court's vacating and re-imposing the same
sentence as before, so as to permit defendant to file what
would otherwise be an untimely appeal); Datts v. United
States, 2012 WL 5997803 at * 2 (S.D. Ga. Oct. 24, 2012).
since the parties agree to the result reached here, the Clerk
is DIRECTED to immediately forward this Report and
Recommendation to the district judge.
REPORTED AND RECOMMENDED.
 The Eleventh Circuit explained
[i]n Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court established
a two-prong test for deciding whether a defendant has
received ineffective assistance of counsel. The defendant
must show (1) that counsel's performance failed to meet
“an objective standard of reasonableness, ”
id. at 688, 104 S.Ct. at 2064; and (2) that the
defendant's rights were prejudiced as a result of the
attorney's substandard performance. Id. at 693,
104 S.Ct. at 2067. In Roe v. Flores-Ortega, 528 U.S.
470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), the Court
applied the Strickland test to a claim involving an
attorney's failure to file an appeal for a
Gomez-Diaz v. United States, 433 F.3d 788,
791 (11th Cir. 2005).
Ignoring an appeal request is per se
ineffective. Roe, 528 U.S. at 483-86; Gaston v.
United States, 237 F. App'x 495, 495 (11th Cir.
2007). Even absent a request, “counsel has a
constitutionally imposed duty to consult with the defendant
about an appeal when there is reason to think either (1) that
a rational defendant would want to appeal (for example,
because there are nonfrivolous grounds for appeal), or (2)
that this particular defendant reasonably demonstrated to
counsel that he was interested in appealing.”
Roe, 528 U.S. at 480; Green v. United
States, 2013 WL 5347355 at * 4-5 (S.D. Ga. Sept. 23,
 To assist attorneys in upholding their
Roe duty, this Court routinely distributes a
“NOTICE OF COUNSEL'S POST-CONVICTION
OBLIGATIONS” form. It compels counsel and client to
“Roe-confer, ” then witness each
other's signatures under the defendant's appeal
choice. The Notice also directs attorneys to file it in the
In an earlier Order, the Court directed Loncon to
explain why no such Notice is in the record, especially since
the Court had distributed a blank Notice to him upon his
initial appearance, doc. 12. Doc. 37. In that regard, the
Court has since learned (in the recently filed March 16,
2016, sentencing transcript), that right after Jiles was