Opinion
CRIMINAL ACTION NO. 10-0298-01
08-08-2016
UNITED STATES OF AMERICA v. JAY SANDIFER
MAG. JUDGE PEREZ-MONTES
JUDGMENT
For the reasons contained in the Report and Recommendation of the Magistrate Judge previously filed herein, (Doc. 115) and after an independent, de novo, review of the record including the objections and response filed herein, and having determined that the findings and recommendation are correct under the applicable law, we ADOPT the Report and Recommendation of the Magistrate Judge.
In so finding, we note the government's objection that Sandifer's § 2255 motion is untimely. However, the out-of-time appeal sought by Sandifer, presented in a § 2255 motion, is a judicial remedy crafted by Fifth Circuit Court of Appeals precedent, rather than a statutory remedy under 28 U.S.C. § 2255. See United States v. West, 240 F.3d 456, 460 (5th Cir. 2001); Mack v. Smith, 659 F.2d 23, 26 (5th Cir. 1981)). Part of the procedure for granting an out-of-time appeal in the Fifth Circuit is the dismissal of the § 2255 motion without prejudice. Id. Accordingly, we find that the untimeliness of Sandifer's § 2255 motion does not bar us from granting his out-of-time appeal in this case.
Thus, IT IS ORDERED that Jay Sandifer is GRANTED AN OUT-OF-TIME APPEAL.
IT IS FURTHER ORDERED that Jay Sandifer's criminal judgment is REINSTATED ON THE DOCKET OF THE COURT.
IT IS FURTHER ORDERED that Jay Sandifer's § 2255 motion (Doc. 111) is DISMISSED WITHOUT PREJUDICE.
The Clerk of Court is directed to send Sandifer: (1) an application to proceed in forma pauperis, and (2) a form for a Notice of Appeal.
SIGNED on this 8th day of August, 2016 at Alexandria, Louisiana.
/s/_________
DEE D. DRELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT