Opinion
Case No. 3:05-cv-776-J-20HTS, No. 3:03-cr-365-J-20HTS.
March 2, 2006
ORDER
On December 11, 2003 Petitioner Carlton was indicted for felony possession of a firearm in violation of 18 U.S.C. 922(g)(1) and 924(a)(2), to which he pled guilty, without the benefit of a plea agreement. Petitioner's § 2255 grounds for relief were previously reviewed by this Court and all were denied, except whether his attorney was ineffective for failing to file a direct appeal (Doc. No. 12, filed January 4, 2006).
The Court conducted an evidentiary hearing on March 1, 2006, on the issue whether Petitioner's trial counsel was ineffective by failing to file Petitioner's requested notice of appeal. Based on the mutual agreement of the Parties, the Court finds that Petitioner did request that his attorney file an appeal and that his counsel failed to do so. Accordingly, Petitioner James B. Carlton's Amended Motion (Doc. No. 6, filed September 6, 2005) to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, is GRANTED, only insofar as Petitioner is being allowed to file a late appeal. The date of Petitioner's judgment is adjusted to the date of this Order solely for the purpose of commencing the time in which a formal notice of appeal may be filed. In addition, since the Petitioner is without sufficient resources under 18 U.S.C. § 3006A, the Court appoints Donald Mairs, Esq. as Petitioner's appellate counsel.
The Clerk shall enter judgement accordingly and close case 3:05-cv-776-J-20-HTS.
DONE AND ENTERED.