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Warner v. United States

United States District Court, D. Hawaii

April 18, 2018

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

         ORDER DENYING PETITIONER'S MOTION TO RECONSIDER HIS MOTION FOR APPOINTMENT OF COUNSEL AND MOTION FOR MEDICAL EVALUATION (ECF NO. 98) AND DENYING PETITIONER'S MOTION TO STAY THE ORDER WAIVING ATTORNEY-CLIENT PRIVILEGE (ECF NO. 98) AND VACATING AND REENTERING JUDGMENT PURSUANT TO PETITIONER LUKE WARNER'S 28 U.S.C. § 2255 PETITION (ECF NO. 83)

          Helen Gillmor 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 (“Section 2255 Petition”). Petitioner challenged his sentence, stating his attorney provided ineffective assistance of counsel by failing to file a notice of appeal.

         In the Court's March 28, 2018 Order, the Court asked the Government to decide whether it either (1) sought an evidentiary hearing, or (2) declined to seek an evidentiary hearing and did not oppose Petitioner Warner's Section 2255 Petition on the basis of ineffective assistance of counsel for failure to file an appeal.

         On April 6, 2018, the Government indicated it did not seek an evidentiary hearing on Petitioner's claim that his attorneys failed to appeal.

         On April 10, 2018, Petitioner filed a Response. Petitioner seeks reconsideration of the Court's orders denying his request for appointment of counsel and request for a medical evaluation. Petitioner also requests a stay of the Court's order finding a waiver of attorney-client privilege based on the ineffective assistance of counsel claim presented in his Section 2255 Petition.

         Petitioner's requests for reconsideration and his request for a stay are DENIED.

         Pursuant to the Ninth Circuit Court of Appeals's decision in United States v. Sandoval-Lopez, 409 F.3d 1193, 1198 (9th Cir. 2005), the Court assumes, without deciding, that Petitioner timely requested an appeal that was not made, and therefore vacates and reenters the Judgment, allowing Petitioner to file a Notice of Appeal, if he so chooses.

         Petitioner Warner's Section 2255 Motion (ECF No. 83) is GRANTED. The Court's Judgment imposed on March 12, 2015 (ECF No. 31) is VACATED and is REENTERED as of the date of this Order.

         The Sentence and Conditions of the Judgment are unchanged.

         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 an Order To Allow ...


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