Spears v. USA

Filing 27

ORDER adopting 25 Report and Recommendation; granting, in part, and dismissing without prejudice, in part, 1 Motion to vacate, set aside or correct sentence (2255). Hearing set for January 25, 2016, at 3:00 p.m. to reimpose sentence. The Clerk of the Court is directed to close the file. Signed by Judge Marcia Morales Howard on 12/1/2015. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
BRYAN ROSS SPEARS,
Petitioner,
vs.

Case No.:

3:13-cv-21-J-34JBT
3:11-cr-224-J-34JBT

UNITED STATES OF AMERICA,
Respondent.
__________________________________/
ORDER
This cause is before the Court on Petitioner Bryan Ross Spears’ Motion to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 1, Motion to Vacate).1 On
April 23, 2015, the Court entered an order granting Spears an evidentiary hearing on
Ground Four, in which he claimed that counsel either failed to file a notice of appeal as
requested, or that counsel failed to adequately consult with him about the right to appeal.
(Doc. 17, Order). The Court referred the matter to the Honorable Joel B. Toomey, United
States Magistrate Judge, who conducted an evidentiary hearing on July 27, 2015. Before
the Court is the Magistrate Judge’s Report and Recommendation (Doc. 25, R & R), in
which the Magistrate Judge recommends that the Court grant Spears relief on Ground
Four by permitting him to pursue an out-of-time appeal. The parties had fourteen days to
file objections to the Report and Recommendation, and none have been filed.

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Citations to the record of Jackson’s criminal case file, United States of America vs.
Bryan Ross Spears, 3:11-cr-224-J-34JBT, are denoted as “Crim. Doc. ____.” Citations
to Spears’s civil § 2255 case file, 3:13-cv-21-J-34JBT, are denoted as “Doc. ____.”
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The Court may “accept, reject, modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). If no specific
objections to findings of facts are filed, the district court is not required to conduct a de
novo review of those findings. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir.
1993); see also 28 U.S.C. § 636(b)(1). However, the Court must review legal conclusions
de novo. See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994);
United States v. Rice, No. 2:07-mc-8-FtM-29SPC, 2007 WL 1428615 at *1 (M.D. Fla. May
14, 2007). Under 28 U.S.C. § 636(c), only a district judge has authority to issue the final
judgment on a § 2255 motion. Brown v. United States, 748 F.3d 1045, 1072 (11th Cir.
2014).
Upon independent review of the file and for the reasons stated in the Magistrate
Judge’s Report, the Court will accept and adopt the legal and factual conclusions
recommended by the Magistrate Judge. Accordingly, it is hereby
ORDERED:
1. The Magistrate Judge’s Report and Recommendation (Doc. 25) is ADOPTED
as the opinion of the Court.
2. Relief on Ground Four of Spears’s Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255 (Doc. 1) is due to be GRANTED.
3. Pursuant to the procedure set forth in United States v. Phillips, 225 F.3d 1198,
1201 (11th Cir. 2000), the Court will:
a. Enter an order in the related criminal case vacating the original
judgment;

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b. Order Spears and his counsel to appear before the Court on January
25, 2016, at 3:00 p.m., Courtroom 10B, at which time the Court will:
i.

reimpose the previously announced sentence of a term of
120 months of imprisonment;

ii.

advise Spears of the rights associated with an appeal from
a criminal sentence;

iii.

advise Spears that he shall have 14 days from the reimposition of sentence to file a notice of appeal; and

iv.

inquire whether Spears will be in need of court-appointed
counsel to represent him in his belated appeal.

4. Pursuant to McIver v. United States, 307 F.3d 1327, 1331 n.2 (11th Cir. 2002),
the remaining claims in Spear’s Motion to Vacate are DISMISSED WITHOUT
PREJUDICE.
5. The Clerk of the Court is directed to enter judgment in favor of Spears to the
extent that he may file a belated appeal in the related criminal case and
otherwise dismissing his Motion to Vacate without prejudice. The Clerk of the
Court is further directed to terminate all pending motions as moot and close the
file.
DONE AND ORDERED at Jacksonville, Florida this 1st day of December, 2015.

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lc 19
Copies:
Honorable Joel B. Toomey
United States Magistrate Judge
Petitioner Bryan Ross Spears
Counsel of record

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