Ruiz v. USA
Filing
37
MEMORANDUM OPINION AND ORDER re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Salvador Yanez Ruiz. ORDERED that the motion to vacate, set aside, or correct sentence is DISMISSED without prejudice. The Clerk shall reinstate the jud gment of conviction in the Movant's criminal case on the docket, as of the date of entry of this Memorandum Opinion and Order. Movant shall have fourteen (14) days in which to file a notice of appeal. Fed. R. App. P. 4(b). Signed by Judge Richard A. Schell on 12/14/2012. (kls, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
SALVADOR YANEZ RUIZ, #35269-177
§
VS.
§
UNITED STATES OF AMERICA
§
CIVIL ACTION NO. 4:09cv172
CRIM. ACTION NO. 4:07cr42
MEMORANDUM OPINION AND ORDER
A Report and Recommendation was issued in this case, recommending that Movant’s case
be dismissed, which this Court adopted on March 30, 2012. Upon further reflection, however,
reconsideration is warranted. In his objections to the Report and Recommendation, Movant alleged
for the first time that he asked his counsel to file an appeal on his behalf. New issues raised in
objections to the Report and Recommendation are not properly before the Court. Finley v. Johnson,
243 F.3d 215, 219 (5th Cir. 2001). In the interest of justice, however, because Movant alleged that
he had asked counsel to file an appeal, and counsel failed to do so, reconsideration of this issue is
appropriate.
The Court considers the issue in light of a 2007 case by the United States Court of Appeals
for the Fifth Circuit, United States v. Tapp, 491 F.3d 263 (5th Cir. 2007). In Tapp, the court held
that, even in a case where defendant waived his right to direct appeal and collateral review (as in the
present case), the failure to file a requested notice of appeal is per se ineffective assistance of
counsel. The court noted that if the movant is able to demonstrate by a preponderance of the
evidence that he requested an appeal, prejudice will be presumed and the petitioner will be entitled
1
to an out-of-time appeal. The Court concludes that Movant plausibly argued that he asked for a
direct appeal, but counsel did not file an appeal. Accordingly, Movant is entitled to an out-of-time
appeal. It is therefore
ORDERED that the motion to vacate, set aside, or correct sentence is DISMISSED without
prejudice. The Clerk shall reinstate the judgment of conviction in the Movant’s criminal case on
the docket, as of the date of entry of this Memorandum Opinion and Order. Movant shall have
fourteen (14) days in which to file a notice of appeal. Fed. R. App. P. 4(b).
.
SIGNED this the 14th day of December, 2012.
_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?