United States v. HERNANDEZ

3:02-cr-00058 | N.D. Fla. | May 2, 2005

Case 3:02-cr-00058-LC-MD Document 97 Filed 05/02/05 Page 1 of 2

Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION UNITED STATES OF AMERICA vs. 3:02cr58/LAC

3:04cv122/LAC/MD LUIS ANGEL HERNANDEZ ORDER and REPORT AND RECOMMENDATION This cause is before the court upon defendant’s motion to dismiss (doc. 94), filed by counsel who was appointed for the express purpose of representing defendant at the evidentiary hearing. Counsel also filed a “motion to clarify.” (Doc. 96). Because there will be no evidentiary hearing, counsel’s representation of the defendant has now concluded.

The motion to dismiss reflects that “[a]fter consulting with undersigned counsel, the defendant has decided to dismiss his claim, cancel the evidentiary hearing, and forego an appeal.” The accompanying affidavit states “I wish to dismiss my claim filed pursuant to 28 U.S.C § 2255 and forego an appeal in the above referenced matter.” Because the motion to dismiss and affidavit could conceivably be construed as seeking dismissal only of the single claim that was to be the subject of the evidentiary hearing, counsel filed a motion to clarify. In this motion, counsel indicates that “[d]efendant wishes to dismiss all of his claims previously filed pursuant to 28 U.S.C. § 2255, including, but not limited to the claim related to trial counsel’s failure to file a notice of appeal.” (Doc. 96). This request should be granted.

Accordingly, it is ORDERED: Defendant’s motion to clarify (doc. 96) is GRANTED. Case 3:02-cr-00058-LC-MD Document 97 Filed 05/02/05 Page 2 of 2

Page 2 of 2 And it is respectfully RECOMMENDED: Defendant’s motion to dismiss his § 2255 motion (doc. 94) be granted and this case

be dismissed without prejudice. The clerk is directed to send a copy of this recommendation to both defendant and his attorney. At Pensacola, Florida, this 2 nd day of May, 2005. /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO T HE PARTIES

Any objections to these proposed findings and reco m m end ations must be filed within ten days after being served a copy thereof. A copy of objections shall be served upon the m agistrate jud ge and all other parties. Failure to obje ct m ay lim it the scope o f appe llate review of factu al finding s. See 28 U .S.C . § 636; United State s v. R obe rts , 858 F.2d 698" date_filed="1988-10-25" court="11th Cir." case_name="United States v. John W. Roberts">858 F.2d 698 , 701 (11th Cir. 1988). Case No: 3:02cr58/LAC; 3:04cv122/LAC/MD