West v. United States of America, No. 2:2008cv00006 - Document 22 (M.D. Fla. 2009)

Court Description: OPINION AND ORDER accepting and adopting 21 Report and Recommendation to the extent that the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody is granted as to the ineffective assistance of c ounsel issue for failure to file a Notice of Appeal; the remaining issues are dismissed without prejudice. The Clerk shall enter judgment granting in part and dismissing in part the 1 Motion to vacate, set aside, or correct sentence (2255) as stated. The Clerk shall file a copy of the judgment in the associated criminal case, Case No. 2:05-cr-124-FTM-29SPC. Signed by Judge John E. Steele on 4/16/2009. (RKM)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION WILLIE COLLON WEST, Petitioner, 2:08-cv-6-FtM-29SPC 2:05-cr-124-FTM-29SPC vs. UNITED STATES OF AMERICA, Respondent. _____________________________ OPINION AND ORDER This matter comes before the Court on petitioner s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Doc. #1). On December 29, 2008, the undersigned referred to the magistrate judge the issue of whether petitioner was denied effective assistance of counsel when his attorney failed to file a direct appeal. On April 1, 2009, the magistrate judge filed a Report and Recommendation (Doc. #21) finding, among other things, that counsel had been ineffective in failing to file a notice of appeal and recommending that the motion be granted. After reviewing the Report and Recommendation, the Court accepts and adopts its findings and conclusions as to the ineffective assistance of counsel in failing to file a notice of appeal. Petitioner is entitled to a belated appeal because of the ineffective assistance of counsel in failing to file a notice of appeal. Therefore, the procedure described in United States v. Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000) will be applied to this case. Pursuant to McIver v. United States, 307 F.3d 1327, 1332 (11th Cir. 2002), the Court will dismiss without prejudice the remainder of petitioner s current § 2255 motion. Accordingly, it is now ORDERED: 1. The Magistrate Judge s Report and Recommendation (Doc. #21) is accepted and adopted to the extent that the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Doc. #1) is GRANTED as to ineffective assistance of counsel in failing to file a notice of appeal. 2. The remaining issues raised in the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Doc. #1) are dismissed without prejudice. 3. Petitioner s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Doc. #1) is GRANTED IN PART AND DISMISSED IN PART as set forth above. The Clerk shall enter a judgment in the civil case granting in part and dismissing in part the Petition. 4. In Case No. 2:05-cr-124-FtM-29SPC, the Judgment in a Criminal Case (Doc. #73) as to Willie Collon West is vacated. 5. Defendant Willie Collon West is re-sentenced to the same sentence as originally imposed in the Judgment in a Criminal Case (Case No. 2:05-cr-124, Doc. #73), and the Clerk of the Court shall -2- enter a new Judgment in a Criminal Case imposing the same terms as originally imposed. 6. Attorney Mark J. O Brien is appointed in the criminal case to represent petitioner in the direct appeal of his criminal conviction and sentence. 7. The Clerk shall file a certified copy of the civil judgment in the associated criminal file, and close the civil case file. DONE AND ORDERED at Fort Myers, Florida, this April, 2009. Copies: Magistrate Judge Counsel of Record DCCD -3- 16th day of

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