Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 1:02-cr-00045-MP-GRJ-3

CRAIG CHARLES BOLLES, 

Defendant.

_____________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Defendant’s Motion for Relief from Judgment

or Order. (Doc. 193). Defendant Bolles moves the Court for relief from the final order

and judgment of this Court, entered September 21, 2007, so that he may file a direct

appeal of his sentence. As directed by the Court the Government filed a Response to

the motion (Doc. 195) to which the Defendant filed a Reply. (Doc. 199.) Pursuant to

notice the Court conducted an evidentiary hearing on March 13, 2012 and therefore the

motion is ripe for review. For the reasons discussed below, the undersigned

recommends that defendant’s motion be granted.

Discussion

On May 5, 2003, the defendant, represented by retained counsel Lee A. Cohn,

pled guilty as charged to one count of conspiracy to distribute and to possess with

intent to distribute 3,4-Methylenedioxymethamphetamine, also known as "MDMA",

"Ecstasy", or "X", in violation of 21 U.S.C. §§ 846 and 841(b)(J)(c). (Doc. 76 and 77). 

The government dismissed the portion of count one related to cocaine distribution

(docs. 76 and 77) and defendant was sentenced to 170 months imprisonment, 5 years

supervised release, and a $100.00 special monetary assessment (doc. 110).

Case 1:02-cr-00045-MP-GRJ Document 203 Filed 05/02/12 Page 1 of 7
Page 2 of 7

On December 4, 2003, the defendant timely filed his notice of appeal, which was

dismissed several months later for failure to prosecute. (Docs. 111 and 125). Through

newly retained counsel, Lloyd Vipperman, Jr., defendant filed a motion to vacate,

pursuant to 28 U.S.C. § 2255, arguing, inter alia, ineffective assistance of counsel for

allowing his appeal to be dismissed for failure to prosecute. On September 20, 2007,

the Court adopted the magistrate judge’s report and recommendation and granted

defendant’s motion to vacate. The Court’s order vacated and reimposed the same

sentence finding that defendant was deprived of his right to appeal, which he believed

counsel was pursuing on his behalf. Thus, defendant had ten days from that date to file

a new notice of appeal. Because the resolution of this claim was dispositive of the

motion, the other issues raised were not addressed.

Despite being given a second opportunity, the defendant never filed a notice of

appeal. More than three years later, defendant’s counsel, Lloyd Vipperman, Jr., filed

out-of-time objections to the magistrate judge’s report and recommendation and

requested a de novo review of the other issues raised, which the Court denied.

On September 15, 2011, the defendant wrote a letter to the Court in which he

described a course of misconduct by his retained counsel, Lloyd Vipperman, Jr.,

causing him to miss his second opportunity to file a direct appeal. The defendant

alleged in his letter that Mr. Vipperman repeatedly told both him and his father that the

Court had not ruled on his 2255 motion. In May 2010, the defendant learned from

another inmate that the Court had granted his 2255 motion almost three years prior. As

alleged in the letter, the defendant contacted Mr. Vipperman who came to visit him in

federal prison and promised to inform the Court of his error. Allegedly, Mr. Vipperman

Case No: 1:02-cr-00045-MP-GRJ-3

Case 1:02-cr-00045-MP-GRJ Document 203 Filed 05/02/12 Page 2 of 7
Page 3 of 7

delayed taking action for almost a year making various excuses including the

magistrate judge’s death, the Christmas holidays and involvement in a large trial. In

April 2011, Mr. Vipperman finally filed a document on behalf of the Defendant. Rather

than filing a document advising the Court that Mr. Vipperman had missed the deadline

to file the notice of appeal Mr. Vipperman filed out-of-time objections to the report and

recommendation. The defendant further alleges in the letter that he did not receive a

copy of those objections until several months later after repeated calls to Vipperman’s

office. The letter also states that Mr. Vipperman failed to respond to both his and his

father’s inquiries throughout his representation.

The Court directed the clerk to serve copies of defendant’s letter on both the

government and defendant’s counsel and to mail a copy of the order directly to

defendant. Neither the government nor defendant’s counsel responded.

Several months later, the defendant filed the instant pro se motion for relief from

judgment ultimately seeking to file a direct appeal of his sentence. Pursuant to the

Court’s order, the government responded and conceded that defendant’s motion does

not constitute a successive habeas petition. Nevertheless, the government

recommended denying the motion because it “was not filed within a 'reasonable time'

and he has failed to demonstrate 'extraordinary circumstances' justifying relief from

judgment pursuant to Rule 60(b)(6).” The government’s response seems to ignore the

defendant's factual allegations, which, if substantiated, amount to extraordinary

circumstances. Moreover, the government fails to recognize that, if the defendant’s

allegations are true, the lengthy delay in filing his pro se motion is wholly attributable to

counsel.

Case No: 1:02-cr-00045-MP-GRJ-3

Case 1:02-cr-00045-MP-GRJ Document 203 Filed 05/02/12 Page 3 of 7
Page 4 of 7

On March 13, 2012, the Court held an evidentiary hearing to resolve the factual

issues raised by defendant. The Court appointed the Federal Public Defender’s office

to represent defendant at the evidentiary hearing. During the hearing Lloyd Vipperman,

Jr. testified. Mr. Vipperman admitted that he had lost track of this case and not only

failed to file the notice of appeal but failed to inform defendant that the Court had

granted his 2255 motion. Mr. Vipperman took full responsibility for the failure to file a

notice of appeal as well as the lengthy delay in defendant’s addressing this issue. 

During the hearing, the defendant also testified and restated the matters alleged in his

letter to the Court. Further, the defendant testified that he had relied upon Mr.

Vipperman to provide professional representation regarding his 2255 motion and efforts

to appeal his sentence.

Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, “the court may

relieve a party . . . from a final judgment, order, or proceeding for . . . (6) any [ ] reason

that justifies relief.” Fed. R. Civ. P. 60(b). However, “relief under [Rule 60(b)(6)] is an

extraordinary remedy which may be invoked only upon a showing of exceptional

circumstances,” and “absent such relief, an extreme and unexpected hardship will

result.” Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984). Even when

such circumstances exist, “whether to grant the requested relief is a matter for the

district court's sound discretion.” Mock v. Bell Helicopter Textron, Inc., 373 Fed. Appx.

989, 991 (11th Cir. 2010).

Based on both the defendant’s and Mr. Vipperman’s testimony, the Court finds

the defendant has demonstrated exceptional circumstances that justify relief. The

defendant retained Mr. Vipperman to file a 2255 motion for the sole purpose of

Case No: 1:02-cr-00045-MP-GRJ-3

Case 1:02-cr-00045-MP-GRJ Document 203 Filed 05/02/12 Page 4 of 7
Page 5 of 7

pursuing an out-of-time appeal. The defendant relied on Mr. Vipperman to keep him

informed about the status of that motion and if granted to take the necessary steps to

pursue an appeal. Instead, Mr. Vipperman avoided defendant’s telephone inquires and

misrepresented the status of his motion for years. When confronted by the defendant

about the motion having been granted, Mr. Vipperman promised to inform the Court of

his error. Not only did Mr. Vipperman fail to inform the Court of his error but he delayed

taking action for nearly a year. While the defendant diligently pursued this matter, he

understandably trusted and relied upon his retained counsel’s representations. As

such, counsel’s constitutionally deficient performance effectively deprived defendant of

an appeal that he otherwise would have taken.

Moreover, there is no question that the Defendant presented his motion for relief

from judgment within a “reasonable time” as required by Rule 60(c)(1). The evidence

demonstrates that the Defendant did not find out that Mr. Vipperman had failed to

rectify the error until June 2011.

During the period of time prior to June 2011 the evidence establishes that the

Defendant (and his family) were diligent in contacting Mr. Vipperman to find out the

status of Mr. Vipperman’s efforts to correct the error he had made in failing to file an

appeal. Indeed, after Mr. Vipperman conceded to the Defendant in May 2010 that Mr.

Vipperman had missed the deadline to file the appeal – and then assured the

Defendant that he would notify the Court of the error and seek an out of time appeal –

the Defendant and his family diligently contacted Mr. Vipperman on numerous

occasions but were provided with a series of excuses by Mr. Vipperman in an effort to

justify the delay. Among the excuses offered by Mr. Vipperman for the delay were the

Case No: 1:02-cr-00045-MP-GRJ-3

Case 1:02-cr-00045-MP-GRJ Document 203 Filed 05/02/12 Page 5 of 7
Page 6 of 7

death of the magistrate judge, the holiday season and Mr. Vipperman’s involvement

with a trial. 

After Defendant first learned in June 2011 that the Court had denied Mr.

Vipperman’s effort to correct the error the Defendant was placed in a different facility

(without his legal documents) because of a prison disciplinary matter and was then

transferred to Atlanta USP on August 8, 2011. However, on September 19, 2011, only

one month after Defendant arrived at Atlanta USP Defendant’s letter directed to Judge

Paul and raising the claims involved in Plaintiff’s motion was filed on the docket. (Doc.

190.) The Defendant then filed on December 19, 2011 the instant motion requesting

1

relief from the Court’s prior judgment. Accordingly, the Court concludes that the

Defendant acted diligently and brought the instant motion within a reasonable time. 

Accordingly, for the foregoing reasons, it is respectfully RECOMMENDED that

1. Defendant’s Motion for Relief from Judgment or Order (doc. 193) be

GRANTED.

2. The Second Amended Judgment (doc. 178) should be VACATED, and

the same sentence REIMPOSED.

3. Defendant should be advised that he has fourteen days from the date of

the re-imposed sentence in which to file a notice of appeal.

IN CHAMBERS this 2 day of May 2012.

nd

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

The letter is dated June 29, 2011 and, according to Defendant, was not received by the Court until

1

September 2011 because the Defendant was in transit from the Elmore County Jail in Alabama to the

USP-Atlanta. The letter apparently was not mailed by prison officials until after the Defendant arrived at

USP Atlanta on August 8, 2011.

Case No: 1:02-cr-00045-MP-GRJ-3

Case 1:02-cr-00045-MP-GRJ Document 203 Filed 05/02/12 Page 6 of 7
Page 7 of 7

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 14 days after being

served with a copy thereof. Failure to file specific objections limits the scope of review of

proposed factual findings and recommendations.

Case No: 1:02-cr-00045-MP-GRJ-3

Case 1:02-cr-00045-MP-GRJ Document 203 Filed 05/02/12 Page 7 of 7