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)

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?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

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