Gutierrez v. USA

Filing 6

ORDER before the Court on its own motion following the Governments Response to Petitioners motion to vacate, ( Evidentiary Hearing set for 11/27/2017 09:45 AM in Courtroom 2-1, 401 W Trade St, Charlotte, NC 28202 before District Judge Robert J. Conrad Jr.).. Signed by District Judge Robert J. Conrad, Jr on 10/12/2017. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17-cv-88-RJC
(3:15-cr-121-RJC-DSC-15)
NERIS GUTIERREZ,

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Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
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ORDER

THIS MATTER is before the Court on its own motion following the Government’s
Response to Petitioner’s motion to vacate, set aside or correct sentence brought under 28 U.S.C. §
2255, in which the Government has conceded that an evidentiary hearing may be appropriate to
address Petitioner’s claim that counsel was ineffective for failing to file a notice of appeal after
Petitioner requested counsel to do so. See (Doc. No. 5). The Court will, therefore, conduct an
evidentiary hearing in this matter on the sole issue of Petitioner’s contention that counsel was
ineffective for failing to file a notice of appeal after Petitioner requested counsel to do so.
IT IS, THEREFORE, ORDERED that:
1.

The Bureau of Prisons and the U.S. Marshals Service are hereby ORDERED to
transport and produce the body of Neris Gutierrez (USM #30322-058), for an
Evidentiary Hearing on November 27, 2017, at 9:45 a.m., before the Honorable Robert
J. Conrad, in the Western District of North Carolina, Charlotte Courthouse, 401 W.
Trade St., Courtroom #2-1, Charlotte, North Carolina.

Upon completion of the

Evidentiary Hearing, Petitioner is to be returned to the custody of the Bureau of Prisons.
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2. The Federal Defender of Western North Carolina is hereby appointed to represent
Petitioner at the evidentiary hearing. The Federal Defender shall, no less than thirty
days before the hearing, meet with Petitioner to discuss whether holding an evidentiary
hearing on Petitioner’s claim of ineffective assistance of counsel is in Petitioner’s best
interest.
3. The Clerk is directed to certify copies of this Order to the United States Attorney,
Petitioner’s Counsel, the U.S. Marshal Service, and the U.S. Probation Office.
IT IS SO ORDERED.

Signed: October 12, 2017

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