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Warner v. United States

United States District Court, D. Hawaii

March 28, 2018

LUKE WARNER Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DIRECTING THE GOVERNMENT TO INFORM THE COURT BY MONDAY, APRIL 30, 2018, IF IT SEEKS AN EVIDENTIARY HEARING OR ELECTS NOT TO OPPOSE PETITIONER LUKE WARNER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (ECF NO. 83)

          Helen Gillmor, United States District Judge

         On February 1, 2018, Petitioner Luke Warner filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. (ECF No. 83). Petitioner challenges his sentence, stating his attorney provided ineffective assistance of counsel by failing to file a notice of appeal. Petitioner also makes numerous other arguments challenging his sentence.

         The Court directs the Government to inform the Court on or before Monday, April 30, 2018, if (1) it seeks an evidentiary hearing, or (2) it elects not to oppose Petitioner Warner's Section 2255 Petition and instead agrees to allow him to proceed on appeal.

         PROCEDURAL HISTORY

         On July 17, 2014, the Government filed an Information, charging Petitioner Luke Warner with one count of conspiracy to possess with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A). (ECF No. 1).

         On July 24, 2017, Petitioner Warner waived Indictment (ECF No. 10) and Consented to a Rule 11 Plea in a Felony Case Before a United States Magistrate Judge. (ECF No. 11). Petitioner pled guilty to the one count in the Information pursuant to a Memorandum of Plea Agreement. (ECF Nos. 8, 12).

         On August 11, 2014, the District Court issued an ACCEPTANCE OF PLEA OF GUILTY, ADJUDICATION OF GUILT AND NOTICE OF SENTENCING. (ECF No. 17).

         On March 12, 2015, the Court held a sentencing hearing. Petitioner was sentenced to 120 months imprisonment and ten years of supervised release. (ECF No. 27). Mittimus was stayed until May 26, 2015. (Id. at p. 3; Judgment at p. 2, ECF No. 31).

         On March 23, 2015, the Magistrate Judge issued a STIPULATION TO ALLOW TRAVEL AND ORDER. (ECF No. 30).

         On April 3, 2015, Judgment was entered. (ECF No. 31).

         On April 16, 2015, the Magistrate Judge issued an Amended Stipulation and Order Allowing Defendant To Travel. (ECF No. 34).

         On April 24, 2015, a Petition For Action and a No. Bail Warrant were issued. (ECF Nos. 35, 36).

         On May 26, 2015, Petitioner Warner failed to report to the Bureau of Prisons to being serving his sentence.

         Nearly a year later, on April 17, 2016, Petitioner was arrested in the Southern District of Florida pursuant to the No. Bail Warrant. (ECF Nos. 39, 47).

         On June 14, 2016, an Order To Show Cause Why Pretrial Release Should Not Be Revoked hearing was held. (ECF No. 48). Defendant was found to have violated the terms of pretrial release and to have failed to report on May 26, 2015 to begin serving his sentence of 120 ...


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