Opinion
Case No. 8:03-cr-207-T-24TBM, 8:05-cv-54-T-24TBM.
February 22, 2006
ORDER
This cause is before the Court on William Bottone's "Emergency Motion To Strike § 2255 Pleading, and Waiver of Ordered Evidentiary Hearing To Determine Petitioner's [Bottone's] Ineffective Assistance of Counsel Claim." (Doc. cv-10).
BACKGROUND
On May 29, 2003, a one-count indictment was returned charging Bottone with collection of extensions of credit by extortionate means, in violation of 18 U.S.C. § 894. (Doc. cr-1). Bottone pled guilty and waived his right to appeal his sentence directly or collaterally pursuant to a written plea agreement. (Doc. cr-15, 17). After a change of plea hearing before the United States Magistrate Judge (Doc. cr-17), the undersigned United States District Judge accepted the plea and adjudicated Bottone guilty on December 3, 2004. (Doc. cr-26).
Bottone did not directly appeal. However, on January 7, 2005, Bottone timely filed the present 28 U.S.C. § 2255 motion to vacate, set aside, or correct and allegedly illegal sentence. (Doc. cv-1, cr-32).
Bottone raised three grounds for relief in his motion to vacate. On February 10, 2006, the Court summarily denied relief on grounds two and three. The Court ordered that an evidentiary hearing would be set, by separate notice, on ground one in which Bottone alleged that trial counsel was ineffective for failing to file a notice of appeal. (Doc. cv-8). On that same day, by separate notice, the Court set an evidentiary hearing for Friday, March 3, 2006, and instructed the United States Marshal to transport Bottone to this Court for the hearing. (Doc. cv-9). On February 17, 2006, the Court appointed counsel to represent Bottone at the evidentiary hearing.
Then, on February 21, 2006, Bottone filed the present motion. Bottone seeks to strike ground one from the motion to vacate and to waive the evidentiary hearing.
Having considered the motion, the Court orders:
1. That Bottone's "Emergency Motion To Strike § 2255 Pleading, and Waiver of Ordered Evidentiary Hearing To Determine Petitioner's Ineffective Assistance of Counsel Claim." (Doc. cv-10) is granted. Pursuant to Bottone's motion, ground one is stricken.
2. That Bottone's 2255 motion to vacate (Doc. cv-1, cr-32) is denied, in its entirety. The Clerk is directed to enter judgment against Bottone in the civil case and to close that case.
ORDERED.