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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:03cr11-RH

vs. Case No. 4:04cv292-RH/WCS

ARMANDO HERNANDEZ,

Defendant.

 /

REPORT AND RECOMMENDATION TO GRANT § 2255 MOTION

Defendant, proceeding pro se, filed a 28 U.S.C. § 2255 motion, memorandum of

law, and affidavit in support. Docs. 38-40. Defendant asserted, inter alia, that after

sentencing he instructed counsel to file a notice of appeal, that he also wrote a letter

instructing that a notice of appeal be filed, and that Defendant's mother contacted

counsel who assured her he would file a notice of appeal. Doc. 38, p. 4. A notice of

appeal was never filed. Defendant was sentenced on August 18, 2003, and judgment

was entered on the docket on August 20, 2003. Docs. 30 (minutes) and 33 (judgment).

The Government filed a response to the § 2255 motion. Doc. 52. Counsel

entered a notice of appearance for Defendant, and filed a reply with exhibits. Docs. 56,

60, 61. Defendant has supplied the affidavit of Mariella Diaz (Defendant's mother),

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 The telephone calls were made to a telephone number in Miami. The number

is the same as the number for former counsel (Gustavo Lage) as reflected on the

docket. 

Case Nos. 4:03cr11-RH and 4:04cv292-RH/WCS

stating that she talked to counsel and his secretary, who told her the proper steps had

been taken. Doc. 60, Ex. A. Telephone records confirm calls made to counsel's office1

in June, July, August, September, and October of 2003. Ex. B, pp. 1-4. Most

significantly, Defendant was sentenced on August 18, 2003, and two calls were made to

counsel's office on August 28, one call was made on September 8, and one call was

made on September 10, 2003. Id., pp. 2 and 5. 

A stipulation of parties has now been filed. Doc. 61. The parties do not agree on

other substantive issues, but agree that justice would be served by reinstating the

judgment so that Defendant could file a timely notice of appeal. Id. 

Defendant has shown that he instructed counsel to file a notice of appeal, his

mother was assured that counsel would do so, and that but for counsel's failure to do so

he would have appealed. The Government does not refute these claims, a stipulation

was filed, and there is no reason to hold a hearing. Counsel's disregard of specific

instructions to file a notice of appeal deprived Defendant of any appellate proceeding at

all, and prejudice is presumed. Roe v. Flores-Ortega, 528 U.S. 470, 477-484, 120 S.Ct.

1029, 1035-39, 145 L.Ed.2d 985 (2000). 

As requested in the stipulation, the appropriate relief is to vacate the criminal

judgment, reimpose the same sentence, and advise Defendant of his right to appeal

and that he has 10 days from the judgment to file a notice of appeal. United States v.

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

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Case Nos. 4:03cr11-RH and 4:04cv292-RH/WCS

Pursuant to the pleadings and the stipulation of the parties (doc. 61), it is

respectfully RECOMMENDED that: Defendant's § 2255 motion (doc. 38) be GRANTED

IN PART, this court vacate the criminal judgment (doc. 33), reimpose the same

sentence, and advise Defendant that he has ten days from entry of the new judgment

on the criminal docket in which to file a notice of appeal. 

IN CHAMBERS at Tallahassee, Florida, on March 7, 2005.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

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

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days after

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

review of proposed factual findings and recommendations.

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