Bear Eagle v. USA

Filing 15

ORDER ADOPTING 12 Report and Recommendation of the Magistrate Judge as the Order of this Court. 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 G round One and denied as to Grounds Two and Three. 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. The judgment entered on May 12, 2015 in CR01-00794-PHX-SRB (Doc. 67) is vacated and an amended judgment will be entered. Signed by Judge Susan R Bolton on 11/18/16. (LSP)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Darryl Bear Eagle,
Petitioner,

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v.

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No. CV-15-02028-PHX-SRB
CR01-00794-PHX-SRB
ORDER

United States of America

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Respondent.

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

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

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

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

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

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

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

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

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

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

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

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

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

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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

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

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Therefore;

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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.

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

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

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

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

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

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procedural ruling debatable.

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

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

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

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Dated this 18th day of November, 2016.

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