Jackson v. USA

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATIONS. The Report and Recommendation 21 is ADOPTED. The motion to vacate, set aside or correct Jacksons sentence is DENIED and the cause of action is DISMISSED with prejudice. A certificate of appealability is DE NIED. All motions not previously ruled on are hereby DENIED. Hough-Lewis Dunn has fulfilled the terms of his appointment and that the order appointing him to represent Jackson is VACATED. The Court expresses its appreciation for the work performed by Mr. Dunn. Signed by Judge Michael H. Schneider on 08/19/15. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
LATTORIS DEWUAN JACKSON, #20132-078 §
VS.

§

UNITED STATES OF AMERICA

CIVIL ACTION NO. 6:14cv985
CRIM. NO. 6:12CR00059-011

§
ORDER OF DISMISSAL

Movant Lattoris Dewuan Jackson, an inmate confined at U.S.P. Pollock, filed the above-styled
and numbered motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. The
motion was referred to United States Magistrate Judge John D. Love, who issued a Report and
Recommendation concluding that the motion should be denied. Jackson has filed objections.
Jackson is in custody pursuant to a conviction for the offense of felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1) & § 924(a)(2). After a plea of guilty and pursuant to a written plea
agreement, he was sentenced to 96 months of imprisonment. He did not file a notice of appeal.
One issue raised in the case concerned whether Jackson was entitled to an out-of-time appeal
in light of United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007). An evidentiary hearing was
conducted on this issue on July 24, 2015. The evidence presented during the hearing reveals that
Jackson was informed about his right to appeal. The Court specifically advised him about his right
to appeal when he was sentenced. Counsel briefly talked to Jackson after he was sentenced, but they
did not discuss an appeal. Magistrate Judge Love found that the preponderance of the credible
evidence shows that Jackson never asked his attorney to file a notice of appeal; thus, Jackson is not
entitled to an out-of-time appeal based on Tapp.
In his objections, Jackson asks the Court to extend Tapp and to require counsel to adequately
apprise a criminal defendant “of the content, of the scope, [and] of the right to appeal in Federal court.”
Magistrate Judge Love noted in the Report and Recommendation that perhaps it would be a better practice
for attorneys to specifically ask clients after they are sentenced whether they want to file a notice of
1

appeal. Nonetheless, Tapp does not extend that far; instead, the question in Tapp is whether a defendant
asked his attorney to file a notice of appeal and counsel failed to honor that request. The facts in this case
do not satisfy Tapp, and the case law goes not further.
Apart from the Tapp issue, Magistrate Judge Love found that Jackson’s guilty plea and waiver of
§ 2555 proceedings were knowingly and voluntarily entered. As such, Jackson’s remaining grounds for
relief were waived. No objections were filed regarding these findings.
The Report of the Magistrate Judge, which contains his proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and having
made a de novo review of the objections raised by Jackson to the Report, the Court is of the opinion that
the findings and conclusions of the Magistrate Judge are correct and the objections by Jackson are without
merit. The Court further finds that the findings and conclusions regarding the non-Tapp issues are correct.
Therefore the Court hereby adopts the findings and conclusions of the Magistrate Judge as the findings
and conclusions of the Court. It is accordingly
ORDERED that the Report and Recommendation (docket entry #21) is ADOPTED. It is further
ORDERED that the motion to vacate, set aside or correct Jackson’s sentence pursuant to 28
.
U.S.C. § 2255 is DENIED and the cause of action is DISMISSED with prejudice. It is further
ORDERED that a certificate of appealability is DENIED. It is further
ORDERED that all motions not previously ruled on are hereby DENIED. It is finally
ORDERED that Hough-Lewis Dunn has fulfilled the terms of his appointment and that the order
appointing him to represent Jackson is VACATED. The Court expresses its appreciation for the work
performed by Mr. Dunn.
It is SO ORDERED.
SIGNED this 19th day of August, 2015.

2

____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE