Opinion
Case No. 5:07-CR-18 (HL).
August 18, 2009
ORDER
Before the Court is the Magistrate Judge's Report and Recommendation ("R R") (Doc. 103), which recommends granting the Parties Joint Motion for Recommendation (Doc. 102). The Parties jointly stipulated (1) that Petitioner Middlebrooks should be afforded an out-of-time appeal; (2) that a suitable method for perfecting such an appeal would be for this Court to grant Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, vacating Petitioner's judgment of conviction (Doc. 80) and reinstating the same instanter, thereby resetting Petitioner Middlebrooks' 10-day period after judgment of conviction to file a Notice of Appeal pursuant to F.R.A.P. 4(b); and (3) that Petitioner's trial related ineffective assistance of counsel claims be stayed pending appeal or dismissed without prejudice to re-file following the resolution of his appeal.
The Court accepts and adopts the recommendations of the Magistrate Judge. Accordingly, the Court hereby:
(1) grants Petitioner an out-of-time appeal
(2) grants Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, vacating Petitioner's judgment of conviction (Doc. 80), and reinstates the same instanter, thereby resetting Petitioner Middlebrooks' 10-day period after judgment of conviction to file a Notice of Appeal pursuant to F.R.A.P. 4(b); and
(3) dismisses without prejudice Petitioner's trial related ineffective assistance of counsel claims which may be re-filed following the resolution of his appeal.