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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 4:03cr11-RH/WCS

4:04cv292-RH/WCS

ARMANDO HERNANDEZ,

Defendant.

_________________________________/

ORDER DIRECTING CLERK TO SET TELEPHONE HEARING

Defendant seeks relief under 28 U.S.C. §2255 based on his attorney’s

ineffective assistance in failing to perfect an appeal as instructed. The government

has stipulated that relief should be granted on this basis. 

In these circumstances I ordinarily would conduct no hearing. Instead, I

ordinarily would enter an order granting the §2255 motion and vacating the

original judgment, and I ordinarily would enter an amended judgment imposing

exactly the same sentence, thus reopening the period during which defendant may

perfect an appeal. This is the appropriate remedy in these circumstances. See

United States v. Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000).

Prior to entering the amended judgment in the case at bar, however, I will

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Case No: 4:01cr11-RH and 4:02cv273-RH

conduct a hearing by telephone to determine the parties’ position on the issue of

whether a new sentencing hearing should be conducted. In a prior case involving a

similarly ineffective attorney who did not perfect an appeal, I addressed this issue

as follows:

A new sentencing hearing will not be conducted. When, as

here, the governing law requires reimposition of exactly the same

sentence as has already been imposed, a new sentencing hearing

would serve no purpose. This is especially so when, as here, the

original sentencing hearing was conducted properly in all respects,

and defendant was fully and properly advised of the right to appeal;

relief has been granted only because of ineffective assistance of

defendant’s attorney that occurred after completion and outside the

scope of the sentencing hearing. A new sentencing hearing in these

circumstances could impose very substantial costs by requiring

transportation of the defendant back to the forum. This would

sometimes be expensive (defendants sometimes are incarcerated

hundreds or thousands of miles away) and sometimes would pose a

danger to the public and the transporting marshals. The law of this

circuit—and the law in most other circuits—recognizes that

conducting a hearing to reimpose exactly the same sentence in these

circumstances is not required. See United States v. Phillips, 225 F.3d

1198, 1201 (11th Cir. 2000) (requiring reimposition of same sentence

as §2255 remedy for constitutional error resulting in defendant’s

failure to perfect timely appeal but not stating new sentencing hearing

or defendant’s presence were required); United States v. Portillo, 363

F.3d 1161, 1166 (11th Cir. 2004); United States v. Jackson, 923 F.2d

1494, 1496 (11th Cir. 1991); United States v. Torres-Otero, 232 F.3d

24 (1st Cir. 2000).

United States v. Skinner, No. 4:01cr11-RH, slip op. at 5 n.3 (N.D. Fla. Aug. 18,

2004), aff’d, 2005 WL 1123518 (11th Cir. Apr. 18, 2005) (unpublished table op.).

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Case No: 4:01cr11-RH and 4:02cv273-RH

The only possible basis for adopting a different approach in the case at bar is

that the Supreme Court now has decided United States v. Booker, 125 S. Ct. 738

(2005). If defendant intends to raise an issue on appeal based on Booker, an issue

may be whether the same sentence would have been imposed in light of Booker. It

is unclear whether one or both parties, or neither, might wish to have this issue

addressed by this court prior to any appeal. It also may be unclear whether this

issue properly could be addressed here even if one or both sides preferred that

approach. So that these issues may be addressed, at least preliminarily, without the

expense of having the defendant returned to this district and having the attorneys

appear in person, a telephone hearing will be scheduled. 

For these reasons,

IT IS ORDERED:

The clerk shall set a hearing by telephone for the first available date on or

after June 15, 2005. The attorneys for each side and the defendant himself shall

attend by telephone. 

SO ORDERED this 26th day of May, 2005.

s/Robert L. Hinkle 

Chief United States District Judge 

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