IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA )

)

v. ) No. 3:04-CR-294-R

) No. 3:06-CV-1426-R

ROBERT TROY SLADE )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the United States

District Court for the Northern District of Texas, this case has been referred to the United States

Magistrate Judge. The findings, conclusions, and recommendation of the magistrate judge are as

follows:

Robert Troy Slade (“Movant”) seeks to vacate, set aside, or correct his sentence pursuant

to 28 U.S.C. § 2255. Movant is a federal prisoner currently incarcerated in a federal correctional

institution. Respondent is the United States of America (“Respondent”).

Background 

It has come to the Court’s attention that due to no fault of Movant, an indigent who

brought an appeal in good faith, Movant’s direct appeal was dismissed, his appellate counsel

requested that he be allowed to withdraw, new appellate counsel was not appointed to represent

Movant on appeal, and Movant was erroneously denied a transcript and record on appeal at

government expense. This Court has vacated its order denying the transcript and record on

appeal at government expense, ordered that the transcript and record on appeal be provided at

government expense, and appointed the Federal Public Defender to represent Movant. 

 

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1

 See USA v. Fantozzi, 90 Fed. Appx. 73, 74, (2004 LW 524676 at **2 (5th Cir. 2004) (§ 2255 during

pending direct appeal should be denied w/o prejudice).

2

Recommendation

Because Movant is not permitted to have a § 2255 motion pending during a direct

appeal,1

 the Court hereby recommends that Movant’s § 2255 motion be dismissed without

prejudice to refiling, that the statute of limitations be stayed effective the date the § 2255 motion

was filed, and that if the § 2255 motion is refiled, that the new motion not be deemed a second or

subsequent § 2255 motion.

Signed, November 15, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these findings, conclusions and

recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must serve and

file written objections within ten days after being served with a copy. A party filing objections

must specifically identify those findings, conclusions or recommendation to which objections are

being made. The District Court need not consider frivolous, conclusory or general objections. A

party's failure to file such written objections to these proposed findings, conclusions and

recommendation shall bar that party from a de novo determination by the District Court. See

Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 472 (1985). Additionally, any failure to file

written objections to the proposed findings, conclusions and recommendation within ten days

after being served with a copy shall bar the aggrieved party from appealing the factual findings

and legal conclusions of the Magistrate Judge that are accepted by the District Court, except

upon grounds of plain error. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417

(5th Cir. 1996) (en banc).

____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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