Arthur J. Marshall, Jr. v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 18, 2015
• Docket: 13-12059
• Status: Unpublished

Opinion

Case: 13-12059 Date Filed: 02/18/2015 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 13-12059 Non-Argument Calendar ________________________

D.C. Docket No. 1:11-cv-00097-JRH-WLB

ARTHUR J. MARSHALL, JR.,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Georgia ________________________

(February 18, 2015)

Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 13-12059 Date Filed: 02/18/2015 Page: 2 of 3

Federal prisoner Arthur Marshall, Jr., appeals pro se the district court’s

denial of his 28 U.S.C. § 2255 motion to vacate his total sentence. In his § 2255

motion, Marshall argued, inter alia, that his trial counsel was ineffective due to his

failure to pursue a direct appeal. The district court ultimately denied Marshall’s

§ 2255 motion, finding that his claims were either barred by the collateral-attack

waiver in his plea agreement or otherwise meritless. The district court granted

Marshall a certificate of appealability, however, on the issue of whether the

collateral-attack waiver barred his claims that his trial counsel was ineffective as a

result of his actions relating to pursuing a direct appeal. On appeal, Marshall

argues that the district court erred in finding that the collateral-attack waiver barred

his ineffective-assistance claims relating to his counsel’s failure to pursue a direct

appeal.

On October 14, 2014, the United States Department of Justice issued a

memorandum to all federal prosecutors regarding the enforcement of appeal

waivers in which defendants waive claims of ineffective assistance of counsel on

direct appeal and/or collateral attack. See Memorandum from James M. Cole,

Deputy Attorney General, to All Federal Prosecutors (Oct. 14, 2014), available at

http://pdfserver.amlaw.com/nlj/DOJ_Ineffective_Assistance_Counsel.pdf (“For

cases in which a defendant’s ineffective assistance claim would be barred by a

previously executed waiver, prosecutors should decline to enforce the waiver when

2 Case: 13-12059 Date Filed: 02/18/2015 Page: 3 of 3

defense counsel rendered ineffective assistance resulting in prejudice or when the

defendant’s ineffective assistance claim raises a serious debatable issue that a court

should resolve.”). In light of this new policy, and in response to our directive

asking the United States Attorney to address its impact on the instant case, the

Government has withdrawn its reliance on Marshall’s collateral-attack waiver with

respect to the issues identified in the certificate of appealability.

Therefore, the judgment of the District Court is VACATED and the case is

REMANDED to the District Court with the instruction to afford Marshall an

evidentiary hearing on the ineffective-assistance-of-counsel claims identified in the

certificate of appealability.

VACATED and REMANDED, with instruction.