Opinion
CRIMINAL ACTION FILE NO. 1:17-CR-326-MHC-JKL CIVIL ACTION FILE NO. 1:19-CV-5324-MHC-JKL
09-22-2020
ANTHONY WILLIAMS, Fed. Reg. No. 71167-019, Movant, v. UNITED STATES OF AMERICA, Respondent.
MOTION TO VACATE 28 U.S.C. § 2255
ORDER
Movant Anthony Williams has filed a Motion to Vacate, Set Aside, or Correct Sentence in accordance with 28 U.S.C. § 2255 ("Motion to Vacate") [Doc. 35]. One of Movant's claims is that his attorney failed to follow his instruction to file an appeal after the entry of his judgment of conviction. Mot. to Vacate at 8. This matter is before the Court on the Final Report and Recommendation of the Magistrate Judge ("R&R") [Doc. 47] recommending that the Motion to Vacate be granted for the sole purpose of reinstating Movant's appeal rights. The Order for Service of the R&R [Doc. 48] provided notice that, in accordance with 28 U.S.C. § 636(b)(1), the parties were authorized to file objections within fourteen (14) days of the receipt of that order. No objections have been filed within the permitted time period.
Absent objection, the district court judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge," 28 U.S.C. § 636(b)(1). Based upon the absence of objections to the R&R, in accordance with 28 U.S.C. § 636(b)(1), the Court has reviewed the R&R for plain error. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983). The Court finds no plain error and that the R&R is supported by law.
The Court APPROVES AND ADOPTS the Final Report and Recommendation [Doc. 47] as the opinion and order of the Court. It is hereby ORDERED that Movant's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 [Doc. 35] is GRANTED for the sole purpose of reinstating Movant's appeal rights. To effectuate this relief, the Court:
1. VACATES the judgment of conviction entered in this action;
2. REIMPOSES the sentence of imprisonment, supervised release, special, and other provisions of the judgment imposed by the Court on December 11, 2018 [Doc. 31], with appropriate credit for time served; and
3. ADVISES the 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 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 (14) days of the date the Court reimposes its sentence in this case.
The case is REFERRED to Magistrate Judge John K. Larkins III for appointment of CJA counsel to represent Movant on appeal. See FED. R. CRIM. P. 44(a).
It is further ORDERED that the remaining claims in Movant's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 [Doc. 31] are DISMISSED WITHOUT PREJUDICE so that Movant may reassert those claims, if necessary, after the conclusion of his appeal. See United States v. Frank, 353 F. App'x 305, 307 (11th Cir. 2009) (internal quotation marks omitted) (citing McIver v. United States, 307 F.3d 1327, 1331 n.2 (11th Cir. 2002)) ("[T]he best approach is for the district court to dismiss the collateral claims without prejudice if it grants an out-of-time appeal . . . .").
It is further ORDERED that Movant's Motion to Appoint Counsel for the purpose of an evidentiary hearing on his Motion to Vacate [Doc. 41] is DENIED AS MOOT.
The Clerk is DIRECTED to close the civil case file.
IT IS SO ORDERED this 22nd day of September, 2020.
/s/_________
MARK H. COHEN
United States District Judge