United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE.
case is before the Court on Petitioner Christopher Shamar
McCain's Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence. (Civ. Doc. 1, Motion to
Vacate). The United States has responded. (Civ.
Doc. 5, Response). Petitioner did not file a reply.
2014, Petitioner pled guilty to two counts of robbery
affecting commerce, in violation of 18 U.S.C. § 1951(a),
and two counts of brandishing a firearm in furtherance of a
crime of violence, in violation of 18 U.S.C. § 924(c).
(Crim. Doc. 85, Plea Agreement; see also Crim. Doc.
87, Acceptance of Guilty Plea). Petitioner waived the right
to appeal his sentence as part of his plea agreement. (Crim.
Doc. 85 at 16, ¶B.6). Petitioner moved several times to
continue sentencing, and two years later, on November 30,
2016, the Court sentenced Petitioner to 385 months in prison
- just above the mandatory minimum. (Crim. Doc. 103, Minute
Entry of Sentencing Proceedings; Crim. Doc. 104, Judgment).
The Court entered judgment on January 12, 2017, and
Petitioner did not file a notice of appeal.
months later, Petitioner filed the instant Motion to Vacate
pro se, in which he raised three grounds: (1) that
his federal public defender, Maurice Grant, gave ineffective
assistance of counsel by failing to file a requested notice
of appeal (although Petitioner waived the right to appeal
under his plea agreement); (2) that his convictions and
sentence under 18 U.S.C. § 924(c) are invalid because
§ 924(c)(1) “is not a Congressionally Enacted
Offense”; and (3) that his sentences under §
924(c) are invalid because § 924(c)'s sentencing
provisions are inconsistent with 18 U.S.C. §§ 3551
government did not respond to Grounds Two and Three. Nor does
the government concede that Petitioner's counsel was
ineffective with respect to Ground One. (Civ. Doc. 5 at 5).
However, recognizing that an evidentiary hearing would be
necessary to resolve Ground One were it to be contested, the
government submits that it would be in the interest of
conserving resources to grant the motion “only to
the extent that McCain would be afforded an out-of-time
appeal pursued by appointed counsel.” (Id.)
(emphasis added). The government does not concede that
Petitioner is entitled to any relief from his convictions or
a district court must “resolve all claims for relief
raised in a petition for writ of habeas corpus …
regardless of whether habeas relief is granted or
denied.” Clisby v. Jones, 960 F.2d 925, 936
(11th Cir. 1992) (citations omitted). However, in this
context, where a petitioner claims he has been denied the
right to a direct appeal, the Eleventh Circuit
“think[s] the best approach is to dismiss without
prejudice or hold in abeyance the resolution of remaining
collateral claims pending the direct appeal.”
McIver v. United States, 307 F.3d 1327, 1331 n.2
(11th Cir. 2002). Although a court could consider
the remaining claims on the merits, as Clisby
usually requires, such an approach might entail
“significant inefficiencies.” Id.
the procedure the Eleventh Circuit has developed for such
situations is the following: the district court should (1)
vacate the criminal judgment from which the petitioner seeks
to appeal; (2) reimpose the same sentence; (3) upon
reimposing the sentence, advise the petitioner of all the
rights associated with an appeal from a criminal sentence;
and (4) advise the petitioner of the time for filing a notice
of appeal under Rule 4(b)(1)(A)(i), Federal Rules of
Appellate Procedure. United States v. Phillips, 225
F.3d 1198, 1201 (11th Cir. 2000). Notably, a district court
may carry out this procedure without convening a hearing.
United States v. Parrish, 427 F.3d 1345, 1347-48
(11th Cir. 2005); United States v. Martin, 206
Fed.Appx. 893, 897 n.3 (11th Cir. 2006).
light of the foregoing, the Court intends to grant the Motion
to Vacate only to the extent that Petitioner may pursue an
out-of-time appeal. Consistent with the procedures outlined
in Phillips, McIver, and Parrish,
it is hereby ORDERED:
1. Petitioner Christopher Shamar McCain's Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
is GRANTED to the limited extent that
Petitioner may pursue an out-of-time appeal with the
assistance of appointed counsel. The remaining claims are
DISMISSED WITHOUT PREJUDICE.
Petitioner's convictions and sentence remain unaffected.
2. The Court VACATES the criminal judgment
entered on January 12, 2017. (Crim. Doc. 104). The Court will
enter an amended judgment shortly after entry of this Order.
3. The Court advises Petitioner that although he waived the
right to appeal, he may still have grounds for an appeal,
about which this Court makes no judgment. Petitioner has the
right to the assistance of counsel in pursuing any appeal. To
that end, the Court appoints Darcy Galnor to represent
Petitioner in filing any appeal.
4. Petitioner will have 14 days from the
entry of the new criminal judgment to file a notice of appeal
under Fed. R. App. P. 4(b)(1)(A)(i).
5. This Order shall constitute a final judgment in the civil
action in favor of Petitioner. The Clerk shall close the
civil file and term any pending motions. DONE AND
ORDERED at ...