Murdock v. United States of America

Filing 27

ORDERED that upon receipt of the 11th Circuit mandate for the 18 Notice of Appeal filed by Hezekiah Murdock, the Deputy Clerk shall appoint new counsel and schedule a hearing. Signed by Magistrate Judge G. R. Smith on 1/22/15. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
HEZEKJAH MURDOCK

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Case No. CV412-251

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UNITED STATES OF AMERICA

CR41O-159

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ORDER
This is yet another 28 U.S.C. § 2255 motion based upon a defense
attorney's alleged failure to file a direct appeal following his client's
conviction. And despite this Court's repeated direction to the defense bar
to use a Court-issued form aimed at forestalling such claims,' no such
form was used here. Hezekiah Murdock complains that his lawyer
See Young v. United States, 2012 WL 1970853 at * 1 n. 3 (S.D. Ga. May 7, 2012)
(reminding that this issue can be avoided by the simple use of a prepared form that
court clerks and even prosecutors should ensure that defense counsel timely receive);
United States v. Smith, CR412-211, doe. 28 (S.D. Ga. Apr. 16, 2013) (counsel
complied, filed a "Notice of Post-Conviction Consultation Certification"); Baughman
v. United States, 2008 WL 3861991 at *3_6 (S.D. Ga. Aug. 18, 2008) (copy of that
form); see also Guyton v. United States, 2013 WL 1808761 at * 2 n. 6 (S.D. Ga. Apr.
29, 2013) (similar directive regarding bungled plea offer claims).
Another prophylactic measure to be considered -- a guilty, plea agreement
provision instructing defense counsel not to file an appeal.
See United States v.
Ashby, 2013 WL 1122650 at * 4 (W.D. Va. Mar. 18, 2013) ("In her Plea Agreement
waiver of appeal rights, Ashby 'explicitly and irrevocably' instructed counsel not to
file a notice of appeal.").

ignored his request to file an appeal, and he seeks § 2255 relief on that
score. CR410-159 doe. 677.2
This Court denied relief because Murdock waived his direct and
appeal rights. Doc. 712 at 11-12, reported at 2013 WL 3761124, adopted,
doe. 721, COA granted, doe. 743, reported at 2013 WL 7854283. Murdock
appealed that ruling, doe. 740, but on appeal the Government reversed
its position on appeal waivers. Hence, the Eleventh Circuit vacated that
ruling and remanded this case for "an evidentiary hearing on [movant's]
ineffective-assistance-of-counsel claim." Murdock v. United States, 2015
WL 127365 (11th Cir. Jan. 9, 2015). Upon receipt of the Eleventh
Circuit's mandate, the Deputy Clerk shall appoint new counsel and
schedule that hearing.'

2 All record citations are to the criminal docket (CR410-159). Pinpoint citations are
to the page number the electronic case filing system assigns automatically to the
upper right hand corner of each page.
Note that while his appeal was pending, Murdock filed a second § 2255 motion that
was denied under the same "double waiver" doctrine. Doc. 763 (§ 2255 motion), doe.
765 (Report and Recommendation advising that it be denied), adopted, does. 767 &
768, COA denied, doe. 774 (11th Cir. July 23, 2014). In that Murdock pursued no
further appeal of that § 2255 motion, those claims are now "foreclosed by the law-ofthe-case doctrine." Insignares v. Sec'ty, Fla. Dept. of Corrs.,755 F.3d 1273, 1281 n. 9
(11th Cir. 2014); see also In re: CARY MICHAEL LAMBRIX, - F.3d -, No. 1415617 (11th Cir. Jan. 14, 2015) (successive habeas petition foreclosed by, inter alia,
"the law-of-the-case doctrine"); United States v. Baxter, 566 F. App'x 830, 832 (11th

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SO ORDERED this'ay of January, 2015.
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UNITED TATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

Cir. 2014) ("Under the law-of-the-case doctrine, our prior holdings are generally
binding in subsequent proceedings in the same case.").

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