U.S. v. Davis

3 Citing cases

  1. Carter v. U.S.

    3:09cv14, (3:05cr82) (W.D.N.C. Sep. 10, 2010)   Cited 5 times

    The Court will, therefore, deny the Section 2255 petition, without prejudice as to petitioner filing a motion with the Court of Appeals for the Fourth Circuit to recall and re-enter its mandate. United States v. Davis, 2009 WL 3055230 (W.D. Va. September 23, 2009) (where counsel fails to fulfill his obligations under the CJA Plan, the appropriate remedy is for the Court of Appeals to vacate and re-enter judgment to permit a defendant to file a timely petition for certiorari);see also United States v. Poindexter, 492 F.3d 263 (4th Cir. 2007). The Court will deny petitioner's claim that his counsel was ineffective for failing to file a petition for writ of certiorari in the Supreme Court. Noting that counsel's failure to do so violated his duty under the Fourth Circuit CJA Plan, petitioner will be advised that he may be entitled to relief before the appellate court and instructed that he may file a motion to recall the mandate in the Court of Appeals for the Fourth Circuit.

  2. ROSA v. U.S.

    Civil No. 09-1217 (JAF), (Criminal No. 05-309) (D.P.R. Jul. 12, 2010)

    We are unable to locate any authority that would allow us to recall a circuit court mandate and order its reentry under the guise of § 2255, a statute that explicitly authorizes us to vacate only our own judgments. See United States v. Davis, No. 7:06cr0063-1, 2009 WL 3055230 (W.D. Va. Sept. 23, 2009) (holding that the appropriate relief for counsel's violation of CJA was the recall and reentry of mandate, a remedy outside the district court's authority to grant). Given this lack of statutory authority and also the Second Circuit's treatment of similar § 2255 petitions as motions for a recall of mandate, we hold that Gerena-Méndez' alleged violation of the CJA is not the proper object of a § 2255 proceeding.

  3. U.S. v. Tejeda-Ramirez

    Cr. No. 6:06-393-HMH (D.S.C. Jan. 7, 2010)

    "Since [Tejeda-Ramirez] did not have a constitutional right to the assistance of counsel in seeking certiorari, no Sixth Amendment violation occurred when his attorney failed to notify him of the Fourth Circuit's ruling or failed to file a petition for writ of certiorari on his behalf."United States v. Davis, 2009 WL 3055230, at *2 (W.D. Va. Sept. 23, 2009). Therefore, Tejeda-Ramirez's counsel was not constitutionally ineffective for allegedly failing to notify him of the status of his appeal.