Martinez-Reyes v. USA

Filing 12

ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 11 Report and Recommendation. ORDERED that the Clerk shall reinstate the judgment of conviction in Movant's criminal case on the docket of that cau se. In other words, the Clerk shall re-enter the original judgment of conviction in the criminal case, as of the date of entry of the final judgment in this § 2255 proceeding. Movant shall have ten days from the date of reinstatement of the ju dgment of conviction in which to file a notice of appeal or motion under Rule 4(b)(4), Fed. R. App. P. Finally, it is ORDERED that all motions by either party not previously ruled on are hereby DENIED. Signed by Judge Richard A. Schell on 9/2/2013. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

XAVIER MARTINEZ-REYES, #16773-078

§

VS.

§

UNITED STATES OF AMERICA

§

CIVIL ACTION NO. 4:10cv399
CRIMINAL ACTION NO. 4:09cr146(1)

ORDER
Movant filed the above-styled and numbered pro se motion to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255, asserting his counsel was ineffective. United States
Magistrate Judge Don D. Bush issued a Report and Recommendation recommending that Movant
be allowed an out-of-time appeal based on Movant’s assertion that his attorney failed to file an
appeal after Movant requested that he do so. No objections were filed.
The court is of the opinion that the findings and conclusions of the Magistrate Judge are
correct and adopts the same as the findings and conclusions of the court. It is therefore
ORDERED that Movant be allowed to file an out-of-time appeal and that his motion to
vacate, set aside or correct sentence is DISMISSED without prejudice. It is also
ORDERED that the Clerk shall reinstate the judgment of conviction in Movant’s criminal
case on the docket of that cause. In other words, the Clerk shall re-enter the original judgment of
conviction in the criminal case, as of the date of entry of the final judgment in this § 2255
proceeding. Movant shall have ten days from the date of reinstatement of the judgment of
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conviction in which to file a notice of appeal or motion under Rule 4(b)(4), Fed. R. App. P.
Finally, it is
ORDERED that all motions by either party not previously ruled on are hereby DENIED.

.

SIGNED this the 2nd day of September, 2013.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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