United States District Court, N.D. Georgia, Atlanta Division
FINAL REPORT AND RECOMMENDATION, MOTION TO VACATE 28
U.S.C. § 2255
T. WALKER UNITED STATES MAGISTRATE JUDGE
is a federal prisoner who, pro se, filed a motion to vacate
his sentence under 28 U.S.C. § 2255. (Doc. 131.)In May 2017,
the Court sentenced Movant to eighty-seven months'
imprisonment for using a facility of interstate commerce for
the purpose of committing murder-for-hire. (Doc. 126.)
Richard Holcomb represented Movant through sentencing. The
Court's docket indicates that an appeal has not been
filed, and the time for doing so has expired. See
Fed. R. App. P. 4(b)(1).
claims in his § 2255 motion, and the supporting brief,
that Holcomb failed to file an appeal as instructed. (Doc.
131 at 3-4; Doc. 131-1 at 2-5.) Movant states that he
"specifically asked his counsel to appeal his
sentence" and made a "clear request to
appeal." (Doc. 131-1 at 1, 3.) Movant states that
Holcomb "led him to believe that he would challenge his
conviction and sentence" but instead abandoned Movant.
(Id. at 2-5.) Movant recently obtained a copy of the
case docket and discovered that Holcomb did not file the
appeal. (Id. at 5.) Movant also claims that Holcomb
rendered ineffective assistance by not seeking a minor role
adjustment at sentencing. (Id. at 6-7; Doc. 131 at
criminal defense lawyer has an affirmative duty to
meaningfully consult with her client regarding an appeal and
to file an appeal if the client so requests, regardless of
the merits of the appeal or whether the lawyer believes the
appeal has any chance of success. Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000) ("We have
long held that a lawyer who disregards specific instructions
from the defendant to file a notice of appeal acts in a
manner that is professionally unreasonable.");
Thompson v. United States, 504 F.3d 1203, 1206-07
(11th Cir. 2007). The lawyer's duties regarding appeal
are strict. If a defendant instructs his lawyer to file an
appeal and the lawyer does not do so, "prejudice is
presumed." Gomez-Diaz v. United States, 433
F.3d 788, 792 (11th Cir. 2005).
claims that Holcomb failed to follow his clear and specific
request to fle an appeal. Given the importance of the appeal
right as discussed in Roe and its progeny, and in
the interest of judicial efficiency, the Court should
exercise its discretion to grant Movant an opportunity to
appeal his judgment of conviction. See Order,
Gama-Hernandez v. United States, No. 1:16-cr-139-RWS
(N.D.Ga. Feb. 13, 2017) (granting such relief on § 2255
motion); Order, Buxton v. United States, No.
1:08-cr-500-CAP (N.D.Ga. Aug. 11, 2011) (same); Order,
Scott v. United States, No. 1:06-cr-390-RWS (N.D.Ga.
Sept. 22, 2008) (same).
When the district courts of this circuit conclude that an
out-of-time appeal in a criminal case is warranted as the
remedy in a § 2255 proceeding, they should effect that
remedy in the following way: (1) the criminal judgment from
which the out-of-time appeal is to be permitted should be
vacated; (2) the same sentence should then be reimposed; (3)
upon reimposition of that sentence, the defendant should be
advised of all the rights associated with an appeal from any
criminal sentence; and (4) the defendant should also be
advised that the time for filing a notice of appeal from that
re-imposed sentence is [fourteen] days, which is dictated by
United States v. Phillips, 225 F.3d 1198, 1201 (11th
the undersigned RECOMMENDS that Movant's motion to vacate
his conviction under 28 U.S.C. § 2255  be GRANTED
for the sole purpose of reinstating his appeal rights. To
effectuate that relief, the undersigned RECOMMENDS that the
Court, pursuant to Phillips,
CATE the criminal judgment in this action;
REIMPOSE the sentence of imprisonment, supervised release,
and special assessment imposed by this Court on February 28,
2017, with appropriate credit for time served; and
ADVISE Movant that: (a) he has the right to an appeal; (b) if
he is unable to pay the cost of an appeal, he may apply for
in forma pauperis status to pursue the appeal; (c)
if he so requests, the Clerk of this Court will prepare and
file a notice of appeal on his behalf; (d) he has the right
to counsel on appeal and, if he cannot afford counsel, an
attorney will be appointed to represent him; and (e) any
notice of appeal must be filed within fourteen days of the
date the Court reimposes its sentence in this case.
undersigned FURTHER RECOMMENDS that the other claim in
Movant's § 2255 motion be DISMISSED WITHOUT
PREJUDICE so that Movant may reassert that claim, if
necessary, after the conclusion of his appeal. See United
States v. Frank,353 Fed.Appx. 305, 307 (11th Cir. 2009)
("[T]he best approach is for the district court to
dismiss the collateral ...