Jiles v. United States Of America

Filing 16

REPORT AND RECOMMENDATIONS granting 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Richard A. Jiles so that he may pursue an out-of-time direct appeal. Pursuant to United States v. Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000): (1) the judgment in movants criminal case should be vacated; (2) the Court should enter a new judgment imposing the same sentence; (3) movant should be informed of all of his rights associated with filing an appeal of his re-imposed sentence, and (4 ) movant should be advised that he has 14 days from the date of the reimposition of his sentence to file a timely appeal in accordance with Rule 4(b)(1)(A)(i) of the Federal Rules of Appellate Procedure. Signed by Magistrate Judge G. R. Smith on 6/12/17. (jlm) Modified on 6/12/2017 (jlm).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
RICHARD A. JILES,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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CV417-043
CR415-194

REPORT AND RECOMMENDATION
As explained in Jiles v. United States, ___ F. Supp. 3d ___, 2017 WL
942117 at * 2 (S.D. Ga. Mar. 10, 2017), Richard A. Jiles moves for
28 U.S.C. ' 2255 relief.

CR415-104, doc. 32.

He alleges that his

appointed counsel, Charles V. Loncon, provided him with ineffective
assistance when he missed some issues at sentencing, id. at 9-16, then
failed to abide Jiles’ request to appeal his 18 U.S.C. § 922(g)(1)
conviction.1

Id. at 9 (claiming IAC because Loncon “failed to pursue an

appeal upon his request for his lawyer to do so. . . .”).

1

The Eleventh Circuit explained that
[i]n Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), the Court established a two-prong test for deciding whether a defendant
has received ineffective assistance of counsel. The defendant must show
(1) that counsel’s performance failed to meet “an objective standard of
reasonableness,” id. at 688, 104 S.Ct. at 2064; and (2) that the defendant’s

After directing additional submissions aimed at sharpening the
factual issues, Jiles v. United States, 2017 WL 1536488 (S.D. Ga. Apr. 2,
2017); Jiles v. United States, 2017 WL 2265192 (S.D. Ga. May 24, 2017),
the Government (with Loncon’s tacit concurrence) stipulated, at the June
7, 2017 hearing, that Loncon provided ineffective assistance by
counseling Jiles against taking an appeal based on a nonexistent appeal
waiver.

Compare doc. 38-1 at 4 ¶14 (Loncon’s Declaration that he

counseled against an appeal based on his mistaken belief that the Plea
Agreement contained an appeal waiver), with doc. 19 (Plea Agreement
containing no such waiver).

Hence, the Government concedes the

rights were prejudiced as a result of the attorney's substandard performance.
Id. at 693, 104 S.Ct. at 2067. In Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct.
1029, 145 L.Ed.2d 985 (2000), the Court applied the Strickland test to a claim
involving an attorney's failure to file an appeal for a client.
Gomez-Diaz v. United States, 433 F.3d 788, 791 (11th Cir. 2005).
Ignoring an appeal request is per se ineffective. Roe, 528 U.S. at 483-86; Gaston v.
United States, 237 F. App’x 495, 495 (11th Cir. 2007). Even absent a request,
“counsel has a constitutionally imposed duty to consult with the defendant about an
appeal when there is reason to think either (1) that a rational defendant would want to
appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that
this particular defendant reasonably demonstrated to counsel that he was interested
in appealing.” Roe, 528 U.S. at 480; Green v. United States, 2013 WL 5347355 at * 4-5
(S.D. Ga. Sept. 23, 2013).
2

new-appeal relief Jiles seeks, obviating the need to resolve the “Notice”
issue.2

2

To assist attorneys in upholding their Roe duty, this Court routinely distributes a
“NOTICE OF COUNSEL'S POST-CONVICTION OBLIGATIONS” form. It compels
counsel and client to “Roe-confer,” then witness each other’s signatures under the
defendant’s appeal choice. The Notice also directs attorneys to file it in the record.
In an earlier Order, the Court directed Loncon to explain why no such Notice is in
the record, especially since the Court had distributed a blank Notice to him upon his
initial appearance, doc. 12. Doc. 37. In that regard, the Court has since learned (in
the recently filed March 16, 2016, sentencing transcript), that right after Jiles was
sentenced, Loncon confirmed to the district judge his “Notice duty”:
[THE COURT]: Mr. Loncon, you’ve been furnished with a notice of your
postconviction obligations -MR. LONCON: Yes, ma’am.
THE COURT: -- to your client. And if you’ll sign that and have Mr. Jiles sign it
and file it on the record in this court.
MR. LONCON: We will, Your Honor.
Doc. 48 at 13.
In response to the undersigned’s direction in this § 2255 proceeding, Loncon
declared -- under penalty of perjury -- that “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 courtroom clerk.” Doc. 38-1 at
4 ¶ 15. Jiles has counter-declared, however, that he “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.” Doc. 40 at 1. Concluding that the two
accounts could not be reconciled, the Court set this matter down for an evidentiary
hearing. Jiles, 2017 WL 2265192 at *3. Again, the Government’s stipulation moots
this issue, but the Court reiterates its warning to the bar that hearing costs will be
recouped from negligent counsel. Jiles, 2017 WL 942117 at * 2 n. 1.
3

The Court agrees.

Defendant’s § 2255 motion (doc. 32) therefore

should be GRANTED so that he may pursue an out-of-time direct
appeal.

Pursuant to United States v. Phillips, 225 F.3d 1198, 1201 (11th

Cir. 2000): (1) the judgment in movant’s criminal case should be vacated;
(2) the Court should enter a new judgment imposing the same sentence;
(3) movant should be informed of all of his rights associated with filing an
appeal of his re-imposed sentence, and (4) movant should be advised that
he has 14 days from the date of the reimposition of his sentence to file a
timely appeal in accordance with Rule 4(b)(1)(A)(i) of the Federal Rules of
Appellate Procedure.

Id.

Because Jiles affirms (his § 2255 motion) that he wants to appeal,
his new lawyer (Howard W. Anderson, III) shall timely file a new Notice
of Appeal.

See United States v. Doyle, ___ F.3d ___, 2017 WL 2274007 at

*2 (11th Cir. May 25, 2017) (Phillips remedy for defense counsel’s alleged
ineffectiveness in failing to file direct appeal from the sentence imposed
as defendant requested, is limited to district court’s vacating and
re-imposing the same sentence as before, so as to permit defendant to file
what would otherwise be an untimely appeal); Datts v. United States,
2012 WL 5997803 at * 2 (S.D. Ga. Oct. 24, 2012).
4

Finally, since the parties agree to the result reached here, the Clerk
is DIRECTED to immediately forward this Report and Recommendation
to the district judge.
SO REPORTED AND RECOMMENDED, this 12th day of June,
2017.

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