Motion by Defendant Ramos
In his motion before this Court, defendant Ramos alleges that:
Following the imposition of the sentence on July 11, 1990, Mr. Ramos indicated to Mr. Bernard Grimm that he wished to note an appeal in this case. Through a miscommunication with Mr. Ramos as to whose responsibility it would be to actually file the appropriate notice of appeal, such a notice was not filed.
See Motion To Vacate, at 1.
As the government correctly asserts in its opposition, the "miscommunication could have been the defendant's fault rather than Mr. Grimm's and the defendant's mistake cannot render Mr. Grimm ineffective" for the purposes of a § 2255 motion. See Government's Opposition, at 2. This Court has been working on the pending motion for some time, but, before that work could be finished, defendant Ramos's counsel elected to file a petition for a writ of mandamus. In it, counsel is significantly more explicit about the cause of the failure to appeal than was set forth in the motion addressed to this Court. Ramos's petition for writ of mandamus states:
Mr. Ramos told his trial attorney, Bernard Grimm, that he wished to note an appeal of his sentence. It was the belief of Mr. Ramos that Mr. Grimm would handle the filing of the Notice of Appeal. Through the failure of Mr. Grimm the Notice of Appeal was not filed in this case.
See Petition for Writ of Mandamus, No. 92-3243 (D.C. Cir. received Oct. 29, 1992).
Although the petition thus provides the Court with more useful information than did the original motion, neither the motion nor the petition is sworn to by defendant or accompanied by an affidavit from either defendant or Mr. Grimm. Therefore, if Mr. Grimm's alleged ineffective assistance were the only consideration, the Court would hold a hearing to determine the truth of defendant Ramos's allegations. See Dillane, 350 F.2d at 733. However, the Court finds that holding a hearing is unnecessary.
At defendant Ramos's sentencing, the Court informed defendant that he was entitled to appeal and that if he could not afford a lawyer one would be appointed for him. See Appendix I.
In addition, the Court reflected its confidence in the expected action by retained counsel by commenting that "I am sure that Mr. Grimm will note that appeal." Although unlikely, it is conceivable that the Court contributed in some way to a misunderstanding between defendant Ramos and Mr. Grimm. Therefore, the Court will not hold a hearing to determine whether, as it suspects, Mr. Grimm's assistance was ineffective, but rather will vacate defendant Ramos's sentence and resentence him so that he may take a direct appeal. See Rodriquez, 89 S. Ct. at 1718 (finding that a hearing was unnecessary where the trial judge failed to advise defendant of his right to appeal in forma pauperis). As did the Supreme Court in Rodriquez, the Court does not "see how further delay and further prolonged proceedings would serve the cause of justice." Id. at 1718. Accordingly, it hereby is
ORDERED, that defendant Ramos's July 11, 1990, sentence is vacated. It hereby further is
ORDERED, that a new judgment will be entered this date, sentencing defendant Ramos to the same sentence as the earlier one, specifying (probably unnecessarily) that he is to be given credit for the time already served. It hereby further is
ORDERED, that, pursuant to Rule 32(a)(2) of the Federal Rules of Criminal Procedure, defendant is informed that he has a right to appeal and that, if he is unable to pay the cost of an appeal, he may apply for leave to appeal in forma pauperis. It hereby further is
ORDERED, that defendant is informed that, pursuant to Rule 4(b) of the Federal Rules of Appellate Procedure, he has 10 days from the date of the judgment (filed simultaneously with this Order) to file a notice of appeal.
Stanley S. Harris
United States District Judge
Date: NOV 5 1992
THE COURT: ALSO, AS I AM SURE MR. GRIMM HAS MADE CLEAR TO YOU, YOU'RE ENTITLED TO APPEAL YOUR CONVICTION. I AM SURE THAT MR. GRIMM WILL NOTE THAT APPEAL.
IF YOU ARE UNABLE TO AFFORD AN ATTORNEY, AN ATTORNEY WILL BE APPOINTED FOR YOU.
YOU WILL GET OUT, MR. RAMOS. IT MAY NOT SEEM LIKE IT NOW. YOU'LL GET CREDIT FOR THE TIME YOU'VE SERVED. YOU'LL GET, IF YOU EARN IT, 54 DAYS CREDIT FOR GOOD TIME IN A YEAR AFTER THE FIRST YEAR.
WHEN YOU GET BACK OUT, BY NOW I THINK YOU'VE LEARNED WHAT THESE DRUG LAWS ARE LIKE THESE DAYS; AND THEY COULD BE EVEN TOUGHER WHEN YOU GET BACK OUT.
THE MANDATORY MINIMUM FOR POSSESSION WITH INTENT TO DISTRIBUTE CRACK, FIVE GRAMS OF CRACK--AND YOU KNOW HOW LITTLE THAT IS--A MANDATORY FIVE YEARS; 50 GRAMS OR MORE ATTEMPTED TO DISTRIBUTE, MANDATORY 10-YEAR MINIMUM; POSSESSION OF A GUN IN CONNECTION WITH A DRUG-TRAFFICKING CRIME, MANDATORY FIVE YEARS CONSECUTIVE.
SO I STRONGLY ENCOURAGE YOU TO STAY STRAIGHT WHEN YOU GET BACK OUT, MR. RAMOS. I WISH YOU GOOD LUCK, SIR.
THANK YOU, MR. GRIMM.
MR. GRIMM: THANK YOU, YOUR HONOR.
THE COURT: THANK YOU, MS. VINCENT.
[PROCEEDINGS CONCLUDED AT 10:18 A.M.]