UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION
UNITED STATES OF AMERICA
Plaintiff, CRIM. CASE NO. 08-20385
v. PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
WILLIAM JONES,
Defendant.

ORDER GRANTING DEFENDANT’S 28 U.S.C. §2255 MOTION TO REOPEN TIME TO
APPEAL FROM SENTENCING: PETITIONER HAS 10 DAYS FROM TODAY, JUNE 4,
2012, TO FILE A NOTICE OF APPEAL FROM HIS SENTENCE

Defendant seeks relief under 28 U.S.C. §2255 contending that after his sentencing, at
which he was informed of his right to appeal by the Court, that he wanted to appeal, but his two
retained lawyers failed to communicate with him to permit the timely filing of an appeal on his
behalf.

Defendant argues that his attorneys’ performance was deficient under the Sixth
Amendment — that he was prejudiced as a result of his counsels’ failure to implement his desire
to appeal, under Strickland v. Washington, 466 U.S. 668, 694 (1984). See Glover v. Palmer,
2012 WL 618209 (6" Cir. 2012) Feb. 28, 2012.

Subsequent to Glover v. Palmer, supra, in a case again involving Petitioner Glover, but a
different assault victim, the United States Court of Appeals noted:

The Supreme Court has held that “when counsel’s constitutionally
defendant performance denying a defendant of an appeal that he


otherwise would have taken, the defendant has made out a

successful ineffective assistance of counsel claim entitling him to

an appeal.” Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000). “[W]e

. .. presume prejudice with no further showing from the defendant

of the merits of his underlying claims when the violation of the

right to counsel rendered the proceeding . . . entirely nonexistent.

Id.
Glover v. Birkett, _F.3d__, 2012 WL 1889750 (6" Cir. 2012) Slip Op. P.2. This is the instant
situation.

Having received dueling affidavits submitted by instant Petitioner Jones, and his former
counsel as to what occurred after his sentencing re appeal, the Court held an evidentiary hearing
on February 17, 2012. The Court heard testimony from Petitioner Jones and his co-counsel at
sentencing.

Petitioner testified that one reason he plead guilty without a Rule 11 plea agreement, was
to enable him to retain his right to appeal, Evidentiary Hearing TR. P.10. Potential appeal issues
included drug quantity, role in the offense and safety valve sentencing issues.

Petitioner testified that counsel never came to talk to him after the sentencing, to carry
out his desire to appeal, which he and counsel discussed when the Court, during his sentencing,
applied a leadership role in determining the applicable guideline range. Jd. P.15. He testified
that he disagreed with that ruling, and that counsel responded that it would be appealed. Jd.

One Counsel testified that he met with Petitioner after the sentencing, and that when he
explained that by appealing, the Government could cross-appeal Petitioner’s below-guideline
sentence, Petitioner stated he would not appeal. Jd. at P.40.

Further testimony at the hearing by former defense counsel was his post-sentence

conversation with Petitioner was in the Courthouse Marshal’s lockup. In response, Counsel for


Petitioner introduced evidence that counsel’s name did not appear on the Marshal’s attorney
sign-in sheet for the lockup on the day of the sentencing.

The Court concludes that, in any event, Defendant’s federal right to appeal was nullified
by his attorney’s failure to adequately consult with him after the sentencing to fully ascertain and
implement his client’s intent to appeal his sentence.

Accordingly, the Court grants Petitioner’s §2255 motion as to an appeal, and will reset
his sentencing date to today’s date, June 4, 2012, and provide defendant with 10 days from
today’s date to file a notice of appeal.

SO ORDERED.

a

DATED: / _ \
b Hla— PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE