DAVIS
v.
UNITED STATES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the movant's counsel was ineffective for failing to file a direct appeal after being requested to do so, warranting vacating and reimposing the sentence to allow for an appeal.
Movant pleaded guilty to Hobbs Act robbery and firearm possession and was sentenced. He later filed a motion to vacate his sentence, alleging ineffect…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Motion To Vacate, Set Aside Or Correct Sentence cases and more on FLexlaw
THIS CAUSE is before the Court upon the Report and Recommendation of Magistrate Judge [DE 35] (“Report”) submitted by United States Magistrate Judge William Matthewman regarding Movant’s Final Amended 2255 Petition [DE 11] (“Motion”). The Court has reviewed the Motion, the Report, and the record in this case and is otherwise advised in the premises. No objections to the Report have been filed and the time in which to do so has expired.
On March 5, 2019, pursuant to a plea agreement, Movant entered a plea of guilty to five counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Counts1, 4, 8, 10, and 12), and one count of possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) (Count 13). CR-DE 36, 38.1 He was sentenced to concurrent 66-month terms of imprisonment on Counts1, 4, 8, 10, and 12, and a consecutive 84-month term of imprisonment on Count 13; all to be followed by concurrent 3-year terms of supervised release on all Counts. CR-DE 57. He was also
Magistrate Judge Matthewman held a comprehensive evidentiary hearing during which he heard testimony from Movant, Movant’s trial attorney, and Movant’s mother. In addition, he reviewed documentary evidence. He concluded that Movant had carried his burden of showing that his mother had relayed to his attorney that he wanted to appeal his sentence, but that his attorney did not file the requested appeal. In the Report, Judge Matthewman recommends granting the Motion in part, solely with respect to Ground One, and vacating Movant’s sentence and reimposing the same sentence in order to give Movant an opportunity to appeal. Neither the Government nor the Movant has objected to the Report.
Accordingly, it is ORDERED AND ADJUDGED as follows: 1. The Report and Recommendation of Magistrate Judge [DE 35] is ADOPTED in full.
2. The Motion [DE 11] is GRANTED in part. a. The Motion is granted with respect to Ground One only. b. Grounds Two, Three, and Four are DENIED without prejudice.
3. Movant's sentence is hereby VACATED, and the same sentence will be REIMPOSED in case number 18-80195-CR-COHN.
4. Movant will be permitted to file a direct appeal within 14 days of entry of the Amended Judgment.
5. The Clerk of Court is directed to CLOSE this case and DENY as moot all pending motions. DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 4th day of June, 2021. beech L. JAMES 1. Co Uniged States District Judge Copies provided to: Counsel of record via CM/ECF Pro se parties via U.S. mail to address on file