U.S. v. Thurman

Full title: UNITED STATES OF AMERICA v. JAMES THURMAN

Court: United States District Court, N.D. Florida, Panama City Division

Date published: Jan 10, 2008

5:05CR25/MCR, 5:07CV235/MCR/MD (N.D. Fla. Jan. 10, 2008)

Opinion

5:05CR25/MCR, 5:07CV235/MCR/MD.

January 10, 2008

ORDER

MILES DAVIS, Magistrate Judge

The government has filed a response to defendant's pending motion to vacate pursuant to 28 U.S.C. § 2255, arguing that the defendant is not entitled to relief on any of his claims. Before the court rules on the matter, the defendant will be given the opportunity to reply.

One of the claims raised by the defendant in his pending motion is that counsel was constitutionally ineffective because he failed to file an appeal. He states that "he asked for a direct appeal two days after sentencing and all I received was a letter saying in so many words it would be a waste of time." (Doc. 43 at 7). Despite this assertion, the government states in its response that defendant "has failed to establish that the directed his counsel to file a notice of appeal," and notes that the court notified the defendant of his right to file an appeal himself. (Doc. 51 at 8). The government did not submit an affidavit from defendant's trial counsel, although it submitted a letter addressed to defendant that did not mention the issue of an appeal. In order to assist the court in determining whether an evidentiary hearing on this issue is warranted, in lieu of or in addition to his reply memorandum, defendant is directed to submit a sworn statement regarding the circumstances surrounding his request for an appeal. He should set forth, in as much detail as possible and under penalty of perjury, all discussions (and attempted discussions) he had with counsel regarding an appeal. He should also attach a copy of the letter he received from counsel in response if it is still in his possession. Upon receipt of the defendant's reply and affidavit, the court will assess the need for an evidentiary hearing. Cf. Blackledge v. Allison, 431 U.S. 63, 80-83, 97 S.Ct. 1621, 1632-1634, 52 L.Ed.2d 136 (1977).

Accordingly, it is ORDERED:

Defendant shall have thirty (30) days from the date this order is entered on the docket in which to file a reply to the government's response, as instructed herein.

Failure to submit the required affidavit may be construed as abandonment of defendant's claim.

DONE AND ORDERED.