Betts v. United States of America

Filing 22

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that the evidentiary hearing that was set for April 25, 2016 at 9:30 a.m. is VACATED. IT IS FURTHER ORDERED that the parties shall file the joint memorandum in compliance with this Memorandum and Order no later than April 29, 2016 (Response to Court due by 4/29/2016). Signed by District Judge Rodney W. Sippel on 4/18/16. (CAR)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SEDAKA DAMON BETTS,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:13 CV 2131 RWS

MEMORANDUM AND ORDER
This matter is before me on Petitioner’s amended motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. § 2255 and Respondent’s response to the amended motion to
vacate. For the reasons explained in my Memorandum and Order of July 24, 2015, see ECF
[#12], this matter was set for an evidentiary hearing on Petitioner’s claim that he received
ineffective assistance of counsel as a result of his trial counsel’s failure to file a timely requested
appeal. In its response to the amended motion to vacate, Respondent concedes that Petitioner
was denied effective assistance of counsel for failure to file a timely appeal as requested, and
Respondent requests that I (1) grant Petitioner’s motion for post-conviction relief with respect to
Petitioner’s claim that he requested his attorney to file a notice of appeal and his attorney failed
to do so, (2) deny Petitioner’s remaining claims for post-conviction relief, and (3) cancel the
evidentiary hearing that was set for April 25, 2016. In slight contrast, the relief Petitioner
requests is that I vacate his sentence and schedule a resentencing hearing.
I would like the parties to file a joint memorandum no later than April 29, 2016
advising me whether Respondent consents to the relief that Petitioner requests (vacating
Petitioner’s sentence and resentencing him), and whether Petitioner’s personal appearance is

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required at any resentencing to enable him to file a timely appeal. If the parties agree on an
appropriate procedure to resolve Petitioner’s claim, they shall set out their proposed procedure in
the joint memorandum. Additionally, because an evidentiary hearing is likely no longer
necessary, I will vacate the April 25, 2016 evidentiary hearing at this time.
Accordingly,
IT IS HEREBY ORDERED that the evidentiary hearing that was set for April 25, 2016
at 9:30 a.m. is VACATED.
IT IS FURTHER ORDERED that the parties shall file the joint memorandum in
compliance with this Memorandum and Order no later than April 29, 2016.

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RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 18th day of April, 2016.

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