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NOT FOR PUBLICATION 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Darryl Bear Eagle, 

Petitioner, 

v. 

United States of America 

Respondent. 

No. CV-15-02028-PHX-SRB

 CR01-00794-PHX-SRB 

ORDER 

 On October 8, 2015 Petitioner filed his Motion Under 18 U.S.C. § 2255 to Vacate, 

Set Aside or Correct Sentence alleging three grounds: 1) ineffective assistance of counsel 

to preserve appeal; 2) ineffective assistance of counsel due to abandonment; and 3) his 

sentence was unreasonable. After the motion was fully briefed, the Magistrate Judge 

issued his Report and Recommendation recommending that the Motion be granted as to 

Ground One and denied as to Grounds Two and Three. The Government filed a timely 

objection to the recommendation that the Motion be granted as to Ground One. 

Petitioner did not file any objection to the recommendations that the Motion be denied as 

to Grounds Two and Three. Petitioner filed a response to the Government’s objection. 

 After considering the briefing on the motion, the documents submitted, the Report 

and Recommendation of the Magistrate Judge, the objection and the response to the 

objection, the Court finds itself in agreement with the Report and Recommendation of the 

Magistrate Judge and will overrule the Government’s objection. The Court agrees with 

the conclusion of the Magistrate Judge that counsel provided ineffective assistance of 

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counsel by failing to consult with the Petitioner as to whether he wished to appeal for the 

reasons expressed by the Magistrate Judge in the Report and Recommendations. 

Therefore; 

 IT IS ORDERED overruling the Government’s objection to the Report and 

Recommendation. 

 IT IS FURTHER ORDERED adopting the Report and Recommendation of the 

Magistrate Judge as the Order of this Court. 

 IT IS FURTHER ORDERED that Petitioner’s Motion to Vacate, Set Aside, or 

Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255 is granted 

as to Ground One and denied as to Grounds Two and Three. 

 IT IS FURTHER ORDERED that a Certificate of Appealability and leave to 

proceed in forma pauperis on appeal be denied as to the denial of the Motion on Grounds 

Two and Three because Petitioner has not made a substantial showing of the denial of a 

constitutional right as to Ground Two and because the denial of the Motion as to Ground 

Three is justified by a plain procedural bar and jurists of reason would not find the 

procedural ruling debatable. 

 IT IS FURTHER ORDERED that the judgment entered on May 12, 2015 in 

CR01-00794-PHX-SRB (Doc. 67) is vacated and an amended judgment will be entered. 

Petitioner has 14 days from the date of the amended judgment to file a Notice of Appeal. 

 

 Dated this 18th day of November, 2016. 

Case 2:15-cv-02028-SRB Document 15 Filed 11/18/16 Page 2 of 2