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[DO NOT PUBLISH]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
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No. 13-12059
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-00097-JRH-WLB
ARTHUR J. MARSHALL, JR.,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Georgia
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(February 18, 2015)
Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
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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
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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.
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