Opinion
Civil Action No. 7:05CV00064.
November 8, 2005
REPORT AND RECOMMENDATION
Petitioner Chauncey Leon Combs ("Combs") filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on January 18, 2005. Petitioner claims ineffective assistance of counsel.
Petitioner was charged in a two count indictment handed down on July 17, 2003. Petitioner pled guilty to count one, possession with intent to distribute more than five grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B). His guilty plea was accepted by the court and on January 20, 2004 petitioner was sentenced to 137 months.
Combs now brings this action under 28 U.S.C. § 2255 to vacate his guilty plea alleging ineffective assistance of counsel because, his attorney (1) failed to request a downward departure at sentencing and denied Combs the opportunity to do so by failing to review the pre-sentence report with him, and; (2) failed to note an appeal. After initially dismissing this action, the court granted petitioner's motion for reconsideration on July 18, 2005. The court ordered an evidentiary hearing on the issue of counsel's failure to file an appeal and dismissed the remaining ineffective assistance claims.
The matter was referred to the undersigned for an evidentiary hearing, limited to the issue of whether Combs requested his attorney to file an appeal, and for preparation of report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). On November 8, 2005, an evidentiary hearing was conducted at which petitioner, represented by new counsel, made an oral motion to voluntarily dismiss his § 2255 petition. Under oath, Combs testified he was making this motion to dismiss of his own free will, without any coercion, and because he believes it is in his best interest. Therefore, it is the recommendation of the undersigned that petitioner's motion to dismiss be granted, and that this action be dismissed without prejudice.
For the foregoing reasons, the undersigned recommends that respondent's motion to dismiss be granted. The Clerk of the Court is directed immediately to transmit the record in this case to the Honorable Samuel G. Wilson, United States District Judge. Both sides are reminded that pursuant to Rule 72(b) they are entitled to note any objections to this Report and Recommendation within ten (10) days hereof. Any adjudication of fact or conclusion of law rendered herein by the undersigned not specifically objected to within the period prescribed by law may become conclusive upon the parties. Failure to file specific objections pursuant to 28 U.S.C. § 636(b)(1)(C) as to factual recitations or findings as well as to the conclusions reached by the undersigned may be construed by any reviewing court as a waiver of such objection.
The Clerk of the Court is hereby directed to send a certified copy of this Report and Recommendation to all counsel of record.