Opinion
Case No. 1:16CR00041-012
10-16-2018
UNITED STATES OF AMERICA v. JOHN DEWAYNE FARMER, Defendant.
Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for United States; John Dewayne Farmer, Pro Se Defendant.
OPINION AND ORDER
Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for United States; John Dewayne Farmer, Pro Se Defendant.
An evidentiary hearing is necessary to resolve defendant John Dewayne Farmer's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 957). In one of the eight § 2255 claims, Farmer alleges that counsel rendered ineffective assistance, in violation of the Sixth Amendment, by not filing a notice of appeal when requested. (§ 2255 Mot. 8, ECF No. 957.) Consequently, Farmer presents at least one colorable claim of ineffective assistance of counsel, and the court defers adjudication of Farmer's other § 2255 claims. See, e.g., United States v. Killian, 22 F. App'x 300, 301 (4th Cir. 2001) (stating a district court should not adjudicate other § 2255 claims if vacatur is warranted); United States v. Witherspoon, 231 F.3d 923, 926-27 (4th Cir. 2000) (discussing effective representation about notices of appeal).
The United States' motion to dismiss addresses the first four § 2255 claims only. --------
For these reasons, it is hereby ORDERED as follows:
1. The United States' Motion to Dismiss (ECF No. 1012) is TAKEN UNDER ADVISEMENT;
2. The United States shall RESPOND to claims five through seven within twenty-one days;
3. The defendant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 will be subject to an evidentiary hearing before the undersigned, presently limited to the issue about a notice of appeal;
4. The clerk will arrange the appointment of counsel for defendant for the hearing;
5. The clerk will schedule the hearing and will arrange for the defendant to appear at the hearing by video conference from his place of incarceration; and
6. The clerk will send copies of this Order to the defendant and to appointed counsel.
ENTER: October 16, 2018
/s/ James P. Jones
United States District Judge