Opinion
Case No. 3:00-cr-092 (08).
February 8, 2006
DECISION AND ORDER GRANTING MOTION FOR STATUS REPORT ON PENDING § 2255 MOTION
This case is before the Court on Defendant's Motion for Status of Pending 28 U.S.C. § 2255 Motion (Doc. No. 959). The Motion is GRANTED. A summary of the status of the case follows.
On January 18, 2005, the Magistrate Judge filed a Report and Recommendations (Doc. No. 932) which recommended denying the three grounds for relief pled in the Corrected Motion (Doc. No. 923). Ground Two asserted that the sentence was unlawful in violation of Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L. Ed. 2d 403 (2004); Ground One asserted ineffective assistance of trial counsel for failure to raise the Blakely claim; Ground Three asserted that the Court abused its discretion in failing to grant a downward departure for Defendant to care for his ailing mother. The Report recommends denying Grounds One and Two because Blakely does not apply to cases, such as this one, pending on motions for collateral relief and Ground Three because the claim made is not cognizable under § 2255. Defendant objected to the Report and Recommendations (Doc. No. 937) and those Objections remain pending before Judge Rice for decision.
On July 15, 2005, Mr. Walker moved to amend his § 2255 Motion to allege ineffective assistance of trial counsel for failure to file a notice of appeal and for failure to cross-examine the witnesses on the amount of drugs attributable to Defendant, failure to abide by the plea agreement, and violation of Fed.R.Crim.P. 11 (Doc. No. 942). The Court denied the Motion to Amend because the statute of limitations had expired and the amendments did not "relate back" under the Supreme Court's recent decision in Mayle v. Felix, ___ U.S. ___, 125 S. Ct. 2562; 162 L. Ed. 2d 582 (2005) (Decision and Order, Doc. No. 944). Defendant's Motion to Reconsider was denied and he has appealed to Judge Rice from that denial (Doc. No. 948). That appeal remains pending.
In his Motion for Status, Defendant points out that he has had no hearing on his claim of ineffective assistance of counsel for not filing a notice of appeal. This is true. The reason is that the claim of ineffective assistance of counsel regarding direct appeal is not part of the case at present because the Court denied leave to amend to add that claim.