Jiles v. United States Of America
ORDERED that the Deputy Clerk is DIRECTED to facilitate and schedule an Evidentiary Hearing. Signed by Magistrate Judge G. R. Smith on 5/24/17. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
RICHARD A. JILES,
UNITED STATES OF AMERICA,
In response to Richard A. Jiles’ 28 U.S.C. § 2255 motion, the Court
directed him to file his missing signature page (he has) and the United
States to respond, particularly to his “lost-appeal” claim. 1 Jiles v.
United States , 2017 WL 942117 at * 2 (S.D. Ga. Mar. 10, 2017). The
Defense counsel generally has a duty to consult with his client about an appeal, and
his failure to do so can constitute ineffective assistance of counsel (IAC). Roe v.
Flores-Ortega, 528 U.S. 470, 480 (2000); Green v. United States , 2017 WL 843168 at * 1
(S.D. Ga. Mar. 3, 2017). Ignoring an appeal request is per se IAC. Roe , 528 U.S. at
483-86; Gaston v. United States , 237 F. App’x 495, 495 (11th Cir. 2007).
To assist counsel, this Court routinely distributes a “NOTICE OF COUNSEL’S
POST-CONVICTION OBLIGATIONS” form. It compels counsel and client to confer,
then witness each other’s signatures under the defendant’s appeal choice. It also
directs attorneys to file the Notice in the record. This Court has repeatedly cited
“no-appeal” Notices to summarily deny lost-appeal claims. See, e.g. , Green , 2017 WL
843168 at * 1 (“But movant expressly told her lawyer, in writing, not to file an appeal
after she was fully informed of her appellate rights. . . . Her bare assertion to the
contrary now cannot overcome what she swore to be true shortly after sentencing.”);
Medlock v. United States , 2016 WL 5338514 at * 1 (S.D. Ga. Sept. 22, 2016) (same).
Government conceded that Jiles is entitled to an evidentiary hearing on
whether he asked his appointed lawyer, Charles V. Loncon, to appeal his
conviction. 2 CR415-194, doc. 36 at 5-6. The Court directed Loncon to
explain why the record is bereft of the “NOTICE OF COUNSEL’S
POST-CONVICTION OBLIGATIONS” form that it had distributed to
him upon his initial appearance. 3 Doc. 37 (citing doc. 12).
Loncon claimed he fully consulted with Jiles, who then elected not
to appeal. Doc. 38-1 at 4. Loncon then represented to this Court:
I had printed the Notice of Counsel Post-Conviction Obligations and
brought it to Court for sentencing. My recollection of the events is
simply that I reviewed the waiver with Mr. Jiles following
sentencing, obtain[ed] his signature, and handed that form to the
Id. ¶ 15.
See Moore v. United States , 2014 WL 1152860 at *19 (S.D. Ala. Mar. 21, 2014)
(ordering evidentiary hearing on conflicting evidence whether movant instructed
attorney to file an appeal); Johnson v. United States , 2013 WL 6799204 at *11 (M.D.
Fla. Dec. 23, 2013) (“Where, as here, a decision on counsel’s ineffectiveness for failure
to file a notice of appeal requires a credibility determination and the pleadings are
insufficient to establish the content of the communications between a defendant and
his counsel, an evidentiary hearing is necessary. Gomez-Diaz v. United States , 433
F.3d [788, 792 (11th Cir. 2005)].”).
See Mingo v. United States , 2014 WL 4702577 at * 1 (S.D. Ga. Sept. 22, 2014)
(similar directive in another “lost appeal” case).
The “Clerk’s Minutes” of the Sentencing Hearing, however, bear no
mention of the Notice. Doc. 24. Nor does that deputy recall Loncon
handing to her Jiles’ executed Notice form. And the preprinted portion
of the Notice reminded Loncon that:
[c]ounsel must file this form in the trial-court record of the
defendant’s case within ten business days following its completion.
Attach this as the second page of a document bearing the caption of
your client’s case with this title: “POST-CONVICTION
Doc. 12 (Notice) at 4. 4
In the past the Court has warned that it may assess against counsel the estimated
$10,000 expense caused by counsel’s failure to consult and document that fact by filing
such Notice in the record. Mingo v. United States , 67 F. Supp. 3d 1370, 1372 (S.D. Ga.
2014). Faced with that potential consequence, it’s far too tempting to claim “I may
have given it to” some unnamed court staff member. Indeed, the Court has been
down this road before. See id. at 1371 (defense counsel, in another “missing Notice”
case, declared that he “handed the Notice to the courtroom deputy clerk to file.”).
Henceforth, lawyers appearing before the undersigned must file the Notice
directly with the Clerk of Court. They may not hand it to any other court staff.
Claiming to have done so will not insulate them from the $10,000-expense sanction.
And it goes without saying that counsel should retain a file-stamped copy of their filed
Notice for their own records (Loncon has not produced one here, and he should have
noticed that no “Notice” docketing email issued after he claimed to have handed his
over to a courtroom deputy).
Finally, it is again worth reminding that the Notice has spared many a lawyer from
having to testify at “lost appeal” evidentiary hearings. See, e.g. , Price v. United
States , 2017 WL 525869 at * 4 (S.D. Ga. Feb. 8, 2017) (counsel’s filed Notice and
accompanying declaration “rebut Price’s § 2255 claim that counsel ‘neglected to
apprise me of the advantages and disadvantages of filing a direct appeal in my criminal
case.’”), adopted, 2017 WL 11393058 (S.D. Ga. Apr. 11, 2017). It thus makes sense to
ensure its presence on every lawyer’s radar screen. Extra copies of the Notice (which
Meanwhile, it costs movants like Jiles nothing to file a § 2255
motion (since it’s a motion in a criminal case, there is no fee), 5 and it is
far too easy to casually lie about such matters. Hence, the Court has
routinely elicited written declarations from such movants ahead of any
See Mingo v. United States , 2014 WL 5393575 (S.D.
Ga. Oct. 23, 2014) (sending movant a special 28 U.S.C. § 1746 Declaration
form for him to “affirm or rebut” his appointed lawyer’s assertions on his
claim that counsel ignored his directive to file an appeal), cited in
Marshall v. United States , 2015 WL 3936033 at * 2 (S.D. Ga. June 26,
2015) (“It is this Court’s practice to request sworn affidavits or 28 U.S.C.
§ 1746 Declarations from allegedly errant lawyers and movants before a
is also on the Court’s website) should also be available in the courtroom. This Court
also sends a copy of the Notice upon counsel’s first appearance. See doc. 12 (Loncon’s
notice). Courtroom deputies can “Minute Order” document each lawyer’s receipt of
the Notice at sentencing. And nothing stops prosecutors (who also must have their
time consumed at such evidentiary hearings) from stepping across the aisle and
handing a copy of the Notice to defense counsel.
“What has been happening in ‘lost Notice’ cases . . . is that the guilty-plea convicted
defendant gets sentenced, and then is free to examine the record and spot a missing
Notice. Later, at no cost to him (there is no filing fee for § 2255 motions), he may file
a § 2255 motion claiming he wanted to appeal but his lawyer ignored him.” Mingo , 67
F. Supp. 3d at 1372 n. 3, quoted in Bing v. United States , 2015 WL 4092699 at * 1 (S.D.
Ga. July 6, 2015)).
It thus directed Jiles to affirm or rebut each and every paragraph of
Loncon’s Declaration. 6 Jiles v. United States , 2017 WL 1536488 at * 3
(S.D. Ga. Apr. 27, 2017). Here is his written response, in its entirety:
I stated that I told my Plea Lawyer Mr. Loncon prior to my
sentencing hearing and after the hearing that I wanted to appeal
my sentence, especially the enhance sentence based on what I
believe to be unqualifying prior convictions, among other things.
Mr. Loncon told me that he would get back with me on the issue of
an appeal. In opposite Mr. Loncon never consulted with me on the
issue of an appeal. He never visited the Chatham County Jail (see
visitation log). I never signed any documentation stating that I
voluntarily waived my rights to a first appeal nor did I tell Mr.
Loncon I did not want to appeal my sentence. I never heard from
attorney Loncon after my conviction and sentencing and I expressly
told him I wanted to appeal.
Doc. 40 at 1-2 (unedited).
In Mingo , the Court considered defense counsel’s affidavit about a similar lost
appeal claim. Counsel swore to facts adverse to § 2255 movant Mingo. Mingo , 2014
WL 4926278 at * 1. The Court directed Mingo to rebut that on a § 1746 Declaration
form. It also warned him that it would tolerate no perjury. Rather than comply, he
moved to dismiss his case, and it was promptly granted. Mingo v. United States ,
CR612-018, docs. 1082, 1083 & 1088 (S.D. Ga. 2014); see also Williams v. United
States , CV616-063, doc. 4 (S.D. Ga. June 20, 2016) (“Evidently heeding the Court’s
perjury warning, Williams v. United States , 2016 WL 3194368 at * 2 (S.D. Ga. June 6,
2016), Willie Williams moves the Court to dismiss his 28 U.S.C. § 2255 motion.
CR614-001, doc. 128. The motion should be GRANTED.”); Marshall v. United States ,
2015 WL 3936033 at * 2 (S.D. Ga. 2015) (also ordering supplemental statements
subject to perjury); Watson v. United States , 2016 WL 3581938 at *2 n. 1 (S.D. Ga.
June 27, 2016); id. at * 1 (rejecting his Mingo Statement explanation and advising
dismissal), adopted, 2016 WL 5723673 (S.D. Ga. Sept. 29, 2016), cited in Garrett v.
United States , 2017 WL 810294 at * 3 (S.D. Ga. Feb. 2, 2017).
The two accounts of what happened here cannot be reconciled.
Jiles, whose guilty-plea agreement contains no appeal waiver, doc. 19, is
therefore entitled to an evidentiary hearing.
Williams v. United States ,
660 F. App’x 847, 849 (11th Cir. 2016) (hearing required upon § 2255
movant’s allegation that he received ineffective assistance of counsel
because his attorney failed to file the notice of appeal that movant
requested; although prisoner signed plea agreement with appeal waiver,
he did not waive all of his appellate rights).
Jiles is entitled to new counsel for the hearing and any appeal.
28 U.S.C. § 2255 Rule 8(c); 18 U.S.C. § 3006A; Nguyen v. United States ,
487 F. App’x 484, 4845 (11th Cir. 2012) (directing district court to appoint
counsel for § 2255 movant, then resolve ineffective-assistance claim
during required evidentiary hearing); Reed v. United States , 2014 WL
1347455 at * 2 n. 7 (S.D. Ga. Apr. 4, 2014). The Deputy Clerk is
DIRECTED to facilitate that and schedule an evidentiary hearing.
SO ORDERED, this 24th day of May, 2017.
UNiTED SlATES MAGI[STRA[F JUDGE
SOUTFWRN DISTRICT OF GEORGIA
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