Jiles v. United States Of America

Filing 29

ORDER granting re 26 Motion for Leave to Appeal in forma pauperis; granting re 22 Motion for Certificate of Appeability. Signed by Judge Lisa G. Wood on 11/17/17. (loh)

?l9mtelr States!

Court

^ontl^em JStOtrict of(deotsta

FILED
Scott L. Poff, Clerk
United States District Court

By casbell at 2:04 pm, Nov 17, 2017

^abannol)IBtbtOion
RICHARD JILES,
Movant,
CV417-043

V.

CR415-194

UNITED STATES OF AMERICA,

Respondent.
ORDER

Before

the

Court

is

Richard

Jiles's

motion

for

a

Certificate of Appealability (CCA) to overturn Eleventh Circuit
precedent, see United States v. Phillips, 225 F.3d 1198 (11th
Cir.

2000),

and

to

hold

a

de

novo

sentencing

United States, 131 S. Ct. 1229 (2011).

post-Pepper

Dkt. No. 56 at 1.

v.

At a

de novo sentencing, Jiles would argue for the first time that
his Georgia burglary conviction
Career Criminal Act predicate,

does not qualify as an Armed
contra

United States v. Gundy,

842 F.3d 1156 (11th Cir. 2016), and that the indictment fails to

allege the elements of the offense as required.
2.

Due

to

the

unique

nature

of

Jiles's

Dkt. No. 56 at

out-of-time

appeal

(which was permitted as a result of the Court's conclusion that
trial counsel was ineffective, as set forth in the Report and

Recommendation, Dkt. No. 49, adopted, Dkt. No. 54), the Court is

swayed

that

a

COA

should

issue.

28

U.S.C.

§

2253;

Fed. R. App. P. 22(b); Rule 11(a) of the Rules Governing Habeas
Corpus Cases Under 28 U.S.C. § 2255 (''The district court must
issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.").

Jiles also seeks leave to proceed IFF on appeal, so that

his Criminal Justice Act-appointed § 2255 counsel can continue

to represent him in his quest to overturn Phillips and secure de
novo sentencing.

24(a)(3)

Dkt. No. 59 at 1 (citing Fed. R. App. Pro.

(authorizing

"determined

to

defense

a

in

be

appeals

financially

criminal

IFF

for

unable

case")).

parties

to

obtain

Because

he

previously
an

was

adequate

considered

indigent and thus entitled to CJA counsel at the district court
level,

the

Court

concludes

he

retains

that

entitlement

on

appeal.

In sum, Jiles's unopposed motions for a COA and leave to

proceed IFF on appeal of the Order granting his 28 U.S.C. § 2255
motion

and

ordering

resentencing

(dkt.

nos.

56

&

59)

GRANTED.

SO ORDERED, this n day of

2017.

HON. IISA GODBEY WOOD, JUDGE

uni-M) states district court
SOUTHERN

DISTRICT OF GEORGIA

are