United States District Court, S.D. Illinois
May 10, 2005.
LEONARD W. HOYER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: J. PHIL GILBERT, District Judge
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Leonard W.
Hoyer's ("Hoyer") motion to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). In its initial
review of the motion, the Court identified one theory: that
Hoyer's counsel Paula Phillips ("Phillips") was constitutionally
ineffective because she failed to file a notice of appeal after
Hoyer timely asked her to do so. The Court held a hearing on the
issue and rejected it as a basis for § 2255 relief.
More recently, the Court has had occasion to review Hoyer's
original § 2255 motion. Liberally construing the motion, as it
must under the rule of Haines v. Kerner, 404 U.S. 519, 520
(1972), the Court has identified additional claims of ineffective
assistance of counsel that should have been identified in its
initial review and that must be addressed before entering final
judgment in this case. Those ineffective assistance of counsel
claims are based on Phillips's: (1) failure to make a reasonably
accurate estimate of a defendant's likely sentence when the
defendant was contemplating a guilty plea, (2) failure to object
to the government's alleged breach of an oral agreement regarding
sentencing, and (3) failure to object to the five-level sentence
enhancement under United States Sentencing Guideline § 2K2.1 in
light of Hoyer's conviction under 18 U.S.C. § 924(c). The Court is aware that in his § 2255 motion, Hoyer expressly
states that he wishes to bring these claims on direct appeal (the
direct appeal he seeks to get in the claim the Court has already
rejected). However, because such claims are generally more
appropriate in § 2255 proceedings, and since such claims may be
heard in § 2255 proceedings even if not raised on direct appeal,
Massaro v. United States, 538 U.S. 500, 504-05 (2003), the
Court believes that justice requires that his § 2255 motion be
liberally construed to assert such claims. The Court ORDERS the
government to respond to these additional claims of ineffective
assistance of counsel on or before June 10, 2005.
IT IS SO ORDERED.
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