Hezekiah Murdock v. USA, No. 13-13855 (11th Cir. 2015)
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Case: 13-13855 Date Filed: 01/09/2015 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 13-13855 Non-Argument Calendar ________________________ D.C. Docket Nos. 4:12-cv-00251-BAE-GRS; 4:10-cr-00159-BAE-GRS-4 HEZEKIAH MURDOCK, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Georgia ________________________ (January 9, 2015) Before TJOFLAT, JORDAN, and ROSENBAUM, Circuit Judges. PER CURIAM: Case: 13-13855 Date Filed: 01/09/2015 Page: 2 of 3 Hezekiah Murdock, a federal prisoner proceeding pro se, appeals the denial of his motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C § 2255, alleging ineffective assistance of counsel. The district court denied the motion finding that the ineffective-assistance claim was barred by the collateralattack waiver in Murdock’s plea agreement. On October 14, 2014, the United States Department of Justice issued a memorandum to all federal prosecutors regarding the enforcement of appeal waivers in which defendants waive claims of ineffective assistance of counsel on direct appeal and collateral attack. See Memorandum from James M. Cole, Deputy Attorney General, to All Federal Prosecutors (Oct. 14, 2014), available at http://pdfserver.amlaw.com/nlj/DOJ_Ineffective_Assistance_Counsel.pdf (“For cases in which a defendant’s ineffective assistance claim would be barred by a previously executed waiver, prosecutors should decline to enforce the waiver when defense counsel rendered ineffective assistance resulting in prejudice or when the defendant’s ineffective assistance claim raises a serious debatable issue that a court should resolve.”). In light of this new policy, and in response to our directive asking the United States Attorney to address its impact on this case, the government has withdrawn its reliance on Murdock’s collateral-attack waiver. 2 Case: 13-13855 Date Filed: 01/09/2015 Page: 3 of 3 As a result, the judgment of the district court is VACATED and the case is REMANDED to the district court with the instruction to afford Murdock an evidentiary hearing on his ineffective-assistance-of-counsel claim. 3
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