Chavers v. United States of America

Filing 9

REPORT AND RECOMMENDATIONS on 28 USC 2255 case re 1 Motion (Complaint) to Vacate/Set Aside/Correct Sentence (2255) filed by Millard Chavers. Recommending that this motion to vacate be dismissed without prejudice once the notice of appeal is made partof the underlying criminal case, and new appellate counsel is appointed to prosecute the underlying criminal appeal. Objections to R&R due by 10/29/2009. Signed by Magistrate Judge Patrick A. White on 10/9/2009. (tw)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 09-81124-Civ-HURLEY (98-8047-Cr-HURLEY) MAGISTRATE JUDGE P. A. WHITE MILLARD CHAVERS, Movant, v. UNITED STATES OF AMERICA, : : : : REPORT OF MAGISTRATE JUDGE

: Respondent. _________________________:

The movant filed a pro se motion to vacate pursuant to 28 U.S.C. §2255, attacking his convictions and sentences for conspiracy to commit credit union robbery, credit union robbery, and use of a firearm during and relation to a crime of violence entered following a jury verdict in case no. 98-8047-Cr-Hurley. The movant raises the sole claim that counsel was ineffective for failing to prosecute a requested direct appeal. According to the movant, he was assured by counsel that the notice had been timely filed. The government has filed a response to this court's order to show cause, in which it has attached two copies of the notice of appeal filed by movant's counsel, bearing this Court's "night box filed" date of August 18, 2000. (Cv-DE#7). By separate order, the Clerk is being directed to refile a copy of this Notice in this case, as well as, the underlying criminal proceeding. The government believes the Clerk of Court inadvertently file stamped

the notice, but failed to docket it, sending the original and the judge's copy to the United States Attorney's Office in West Palm Beach, Florida. Therefore, it appears that the movant's appeal was never processed by this court. The government concedes the movant has a right to appeal his judgment of conviction, and therefore recommends that the Clerk of Court electronically file the notice as of the date it was file stamped by the Clerk, thereby insuring the timeliness of the appeal. The government has also indicated that John Garcia, Esquire, movant's counsel who filed the original notice, is longer a practicing attorney in Florida, and, therefore, the movant needs counsel to be appointed to prosecute the criminal direct appeal. After review of the §2255 motion and the government's response thereto, the motion should be dismissed without prejudice once the notice of appeal is made part of the criminal docket, new appellate counsel is appointed for the movant, and the file transmitted to the Eleventh Circuit. The notice of appeal which was properly filed in 2000 divested this Court of jurisdiction to entertain a collateral attack upon the validity of the conviction and sentence. United States v. Tovar-Rico, 61 F.3d 1529, 1532 (11 Cir. 1995), United States v. Wilson, 894 F.2d 1245, 1252 (11 Cir. 1990). Therefore, this motion should be dismissed without prejudice to its refiling if it concerns a matter appropriate to be raised after the appeal. United States v. Khoury, 901 F.2d 948, 969 n.20 (11 Cir. 1990); Shewchun v. United States, 797 F.2d 941 (11 cir. 1986).

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It is therefore recommended that this motion to vacate be dismissed without prejudice once the notice of appeal is made part of the underlying criminal case, and new appellate counsel is appointed to prosecute the underlying criminal appeal. Objections to this report may be filed with the District Judge within ten days of receipt of a copy of the report. Signed this 9th day of October, 2009.

______________________________ UNITED STATES MAGISTRATE JUDGE cc: Millard Chavers, Pro Se Reg. No. 198690 DeSoto Correctional Institution-Annex 13617 S.E. Highway 70 Arcadia, FL 34266-7800 Janice LeClainche, AUSA U.S. Attorney's Office 500 Australian Avenue, Suite 400 West Palm Beach, FL 33401 Phone: [phone] Fax: [phone]

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