Mingo v. United States of America

Filing 5

ORDERED that within 21 days of the date this Order is served, Mongo must--on the attached form to be returned -- affirm or rebut Rawlings's sworn assertions, then sign it under 28 U.S.C 1746 (permitting written, unsworn declaration subscribed in proper form as true under penalty of perjury to substitute for an affidavit.) If he fails to comply, the Court will advise that his 2255 motion be denied. Signed by Magistrate Judge G. R. Smith on 9/30/14. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATE SBORO DIVISION
MARTELL ANTWON MINGO,
Movant,
Case No. CV614-099
CR6 12-0 18

V.

UNITED STATES OF AMERICA,
Respondent.

ORDER
In its last Order the Court preliminarily reviewed Martell Antwon
Mingo's 28 U.S.C. § 2255 motion. Doc. 1049, reported at 2014 WL
4702577. In it he claimed that he told his appointed lawyer, Thomas
Charles Rawlings, to file a direct appeal yet was ignored. Doc. 1049 at 3.
The Court thus directed Rawlings to respond via affidavit and he has
complied. Doc. 1050. Rawlings says he duly consulted with Mingo about
his direct appeal rights just after the Court sentenced him.

Id. at 2.'

Mingo signed the Court's Notice form -- electing not to appeal. Id. at 2-3.

Furthermore, says Rawlings, Mingo never asked him to file an appeal, even when
the two later conferred about a prison transfer. Doe. 1050 at 3.

Rawlings then handed the Notice to the courtroom deputy to file, but it
is not in the record. Id. at 23.2
Within 21 days of the date this Order is served, Mingo must -- on
the attached form to be returned -- affirm or rebut Rawlings' sworn
assertions, then sign it under 28 U.S.C. § 1746 (permitting written,
unsworn declaration subscribed in proper form as true under penalty of
perjury to substitute for an affidavit). 3 If he fails to comply, the Court
will advise that his § 2255 motion be denied.

SO ORDERED, this Aay of September, 2014.

UNITED FA ES MAGISTRATE JUDGE
SOUTHEI4N DISTRICT OF GEORGIA

2

The deputy's sentencing "Minutes" form has a preprinted "Notice of Counsel's
Post-Conviction Obligations Provided" line on it. It is unchecked. Doc. 831.
He is reminded that lying under oath, either live or "on paper," is illegal. See
United States v. Roberts, 308 F.3d 1147, 1155 (11th Cir. 2002) (defendant's falsely
subscribing to statement in his habeas petition that he had not previously filed a §
2255 motion was "material" for purposes of perjury prosecution; statement fooled the
clerk of the court into accepting the "writ" for filing, and led the magistrate judge to
consider its merits until she discovered that the "writ" was a successive § 2255 motion
in disguise); United States v. Dickerson, CR608-36, doc. 1 (S.D. Ga. Dec. 11, 2008) (
2255 movant indicted for perjury for knowingly lying in his motion seeking collateral
relief from his conviction); id., doc. 47 (guilty verdict), cited in Irick v. United States,
2009 WL 2992562 at * 2 (S.D. Ga. Sept. 17, 2009 (unpublished); see also Colony Ins.
Co. v. 9400 Abercorn, LLC, 866 F. Supp. 2d 1376, 1378 n. 2 (S.D. Ga. 2012).
2

J

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATE SBORO DIVISION
MARTELL ANTWON MINGO,
Movant,
Case No. CV614-199
CR612-018

V.

UNITED STATES OF AMERICA,
Respondent.

MARTELL A. MINGO'S STATEMENT

3

Pursuant to 28 U.S.C. § 1746, I declare, under penalty of perjury, that the
foregoing is true and correct and that this was placed in my prison's
mailing system on , 2014.

Martell Antwon Mingo

4