Opinion
Case No: 8:04-CV-2546-T-30EAJ, Crim. Case No: 8:03-CR-184-T-30EAJ.
August 25, 2006
ORDER
THIS CAUSE came before the Court on August 25, 2006, for an evidentiary hearing on the factual issue of whether Petitioner told his attorney within ten days following entry of Judgment that he wished to file a direct appeal.
After hearing and reviewing the evidence, the Court determines that Petitioner was sentenced in this matter on December 12, 2003. Approximately one month after being sentenced, Petitioner spoke to another prisoner who claimed to have received a substantially lower sentence based on similar drug quantity and circumstances. That conversation took place on or shortly before January 14, 2004. On January 14, 2004, Petitioner called his attorney, Elton Gissendanner, III, and requested that an appeal be filed. Mr. Gissendanner explained that the ten day appeal period had expired and it was too late to file an appeal.
This Court finds that Petitioner did not ask for a direct appeal to be filed until January 14, 2004. A direct appeal was time-barred at that time. Therefore, the Court now denies Ground One of Petitioner's § 2255 petition.
It is ORDERED AND ADJUDGED:
1. The Clerk is directed to enter Judgment in favor of the Respondent and against the Petitioner in this matter.
2. The Clerk is directed to terminate all pending motions and CLOSE this file.