Washington v. United States of America, No. 2:2014cv13603 - Document 72 (S.D.W. Va. 2015)

Court Description: MEMORANDUM OPINION AND ORDER adopting 71 Proposed Findings and Recommendations as to James T. Washington granting defendant's 52 MOTION to Vacate, Set Aside or Correct Sentence (2255); directing that defendant's judgment of conviction i s hereby vacated; directing that defendant's remaining claims are hereby dismissed without prejudice; directing the Federal Public Defender to undertake representation of petitioner for the purpose of pursuing his direct appeal or, if the Office is unable to represent defendant, refer the matter to the CJA Supervising Attorney so that counsel may be appointed. Signed by Judge David A. Faber on 11/23/2015.(cc: Judge, USA, counsel, movant, CJA Supervising Atty) (mek)

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Washington v. United States of America Doc. 72 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON JAMES T. WASHINGTON, Petitioner, v. Civil Action No: 2:14-13603 Criminal Action No: 2:12-00187-1 UNITED STATES OF AMERICA, Respondent. MEMORANDUM OPINION AND ORDER Pending before the court is petitioner’s motion to vacate, set aside or correct sentence by a person in federal custody pursuant to 28 U.S.C. § 2255. (Doc. No. 52). By Standing Order, this matter was referred to United States Magistrate Judge Cheryl A. Eifert for submission of findings and recommendations regarding disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). (Doc. No. 53). Magistrate Judge Eifert submitted to the court her Proposed Findings and Recommendation on October 8, 2015, in which she recommended that the district court: (1) grant petitioner’s § 2255 motion to the extent that petitioner seeks to pursue a direct appeal of his conviction and sentence in the United States Court of Appeals for the Fourth Circuit; (2) vacate petitioner’s conviction and a new judgment from which petitioner may file a direct appeal be entered; (3) dismiss without prejudice petitioner’s remaining § 2255 1 Dockets.Justia.com claims; and (4) appoint counsel to represent petitioner throughout his direct appeal. (Doc. No. 71 at 8–9). In accordance with the provisions of 28 U.S.C. § 636(b), the parties were allotted fourteen days, plus three mailing days, in which to file any objections to Magistrate Judge Eifert’s Findings and Recommendation. The failure to file such objections constitutes a waiver of the right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989). None of the parties to this action filed objections to the PF&R. Having reviewed the Findings and Recommendation filed by Magistrate Judge Eifert, the court adopts the findings and recommendation contained therein. Accordingly, the court ORDERS as follows: 1. Petitioner’s § 2255 motion, (Doc. No. 52), is hereby GRANTED to the extent that petitioner seeks to pursue a direct appeal of his conviction and sentence in the United States Court of Appeals for the Fourth Circuit; 2. Petitioner’s judgment of conviction is hereby VACATED and a new judgment from which petitioner may file a direct appeal shall be entered; 3. Petitioner’s remaining § 2255 claims are hereby DISMISSED without prejudice; and 2 4. The court DIRECTS the Federal Public Defender to undertake representation of petitioner for the purpose of pursuing his direct appeal or, if the Office is unable to represent defendant, refer the matter to the CJA Supervising Attorney so that counsel may be appointed. The Clerk is further directed to forward a copy of this Memorandum Opinion and Order to counsel of record, to petitioner, pro se, and the CJA Supervising Attorney. IT IS SO ORDERED this 23rd day of November, 2015. ENTER: David A. Faber Senior United States District Judge 3

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