James T. Washington v. United States of America

Filing 72

MEMORANDUM OPINION AND ORDER adopting 71 Proposed Findings and Recommendations as to James T. Washington granting defendant's 52 MOTION to Vacate, Set Aside or Correct Sentence (2255); directing that defendant's judgment of conviction i s hereby vacated; directing that defendant's remaining claims are hereby dismissed without prejudice; directing the Federal Public Defender to undertake representation of petitioner for the purpose of pursuing his direct appeal or, if the Office is unable to represent defendant, refer the matter to the CJA Supervising Attorney so that counsel may be appointed. Signed by Judge David A. Faber on 11/23/2015.(cc: Judge, USA, counsel, movant, CJA Supervising Atty) (mek)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JAMES T. WASHINGTON,
Petitioner,
v.

Civil Action No: 2:14-13603
Criminal Action No: 2:12-00187-1

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
Pending before the court is petitioner’s motion to vacate,
set aside or correct sentence by a person in federal custody
pursuant to 28 U.S.C. § 2255.

(Doc. No. 52).

By Standing

Order, this matter was referred to United States Magistrate
Judge Cheryl A. Eifert for submission of findings and
recommendations regarding disposition, pursuant to 28 U.S.C. §
636(b)(1)(B).

(Doc. No. 53).

Magistrate Judge Eifert submitted

to the court her Proposed Findings and Recommendation on October
8, 2015, in which she recommended that the district court:
(1) grant petitioner’s § 2255 motion to the extent that
petitioner seeks to pursue a direct appeal of his conviction and
sentence in the United States Court of Appeals for the Fourth
Circuit; (2) vacate petitioner’s conviction and a new judgment
from which petitioner may file a direct appeal be entered;
(3) dismiss without prejudice petitioner’s remaining § 2255
1 

claims; and (4) appoint counsel to represent petitioner
throughout his direct appeal.

(Doc. No. 71 at 8–9).

In accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days, plus three mailing
days, in which to file any objections to Magistrate Judge
Eifert’s Findings and Recommendation.

The failure to file such

objections constitutes a waiver of the right to a de novo review
by this court.

Snyder v. Ridenour, 889 F.2d 1363 (4th Cir.

1989).
None of the parties to this action filed objections to the
PF&R.

Having reviewed the Findings and Recommendation filed by

Magistrate Judge Eifert, the court adopts the findings and
recommendation contained therein.
Accordingly, the court ORDERS as follows:
1.

Petitioner’s § 2255 motion, (Doc. No. 52), is hereby

GRANTED to the extent that petitioner seeks to pursue a direct
appeal of his conviction and sentence in the United States Court
of Appeals for the Fourth Circuit;
2.

Petitioner’s judgment of conviction is hereby VACATED

and a new judgment from which petitioner may file a direct
appeal shall be entered;
3.

Petitioner’s remaining § 2255 claims are hereby

DISMISSED without prejudice; and

2 

4.

The court DIRECTS the Federal Public Defender to

undertake representation of petitioner for the purpose of
pursuing his direct appeal or, if the Office is unable to
represent defendant, refer the matter to the CJA Supervising
Attorney so that counsel may be appointed.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record, to
petitioner, pro se, and the CJA Supervising Attorney.
IT IS SO ORDERED this 23rd day of November, 2015.

ENTER:

David A. Faber
Senior United States District Judge

3