Opinion
CRIMINAL ACTION 17-387-1 CIVIL ACTION 18-1791
07-28-2022
UNITED STATES OF AMERICA v. JOHN RAYMOND MELENDEZ
ORDER
EDWARD G. SMITH, JUDGE
AND NOW, this 28th day of July, 2022, after considering the amended motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody filed by the movant, John Raymond Melendez (“Melendez”) (Doc. No. 72), and the government's motion to dismiss the amended motion (Doc. No. 73); and after an evidentiary hearing on July 14, 2021, at the conclusion of which the court allowed the parties to file supplemental briefing; and no party having filed any supplemental briefing; and for the reasons set forth in the separately filed memorandum opinion, it is hereby ORDERED as follows:
1. The government's motion to dismiss the defendant's amended motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody (Doc. No. 73) is DENIED;
2. Melendez's amended motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody (Doc. No. 72) is GRANTED IN PART and DENIED IN PART as follows:
a. The amended motion, insofar as Melendez argues ineffective assistance of counsel due to plea counsel's failure to file a direct appeal, is GRANTED; andb. With respect to the remainder of Melendez's claims, the amended motion is DENIED WITHOUT PREJUDICE to Melendez filing a new section 2255 motion after exhausting his rights on direct appeal;
3. Melendez's judgment of conviction (Doc. No. 28) is REINSTATED;
4. Attorney Patterson is DIRECTED to file an appeal on behalf of Melendez within 14 days of this order;
5. The clerk of court shall REMOVE Civil Action No. 18-1791 from civil suspense and RETURN it to the undersigned's active docket; and
6. The clerk of court is directed to CLOSE Civil Action No. 18-1791.