The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SILVIO SEGUNDO MICOLTA-SINISTERRA
v. Case No. 8:13-cr-609-T-33CPT
8:20-cv-245-T-33CPT
UNITED STATES OF AMERICA
_______________________________/
ORDER
This matter is before the Court on Silvio Segundo
Micolta-Sinisterra’s 28 U.S.C. § 2255 Motion to Vacate, Set
Aside, or Correct Sentence (Civ. Doc. # 1; Crim. Doc. # 271),
which was filed on January 31, 2020. After Micolta-Sinisterra
filed his memorandum in support (Civ. Doc. # 4), the United
States of America responded on April 3, 2020. (Civ. Doc. #
7). Micolta-Sinisterra replied on May 28, 2020. (Civ. Doc. #
12). For the reasons that follow, the Motion is granted to
the extent set forth below.
I. Background
Pursuant to a plea agreement, Micolta-Sinisterra pled
guilty to conspiracy to possess with intent to distribute
five kilograms or more of cocaine while on board a vessel
subject to the jurisdiction of the United States, in violation
of 46 U.S.C. §§ 70503(a), 70506(a) and (b), and 21 U.S.C. §
960(b)(1)(B)(ii). (Crim. Doc. ## 158, 160, 165). On March 18,
2019, the Court sentenced Micolta-Sinisterra to 240 months in
prison. (Doc. # 192). Micolta-Sinisterra did not file a direct
appeal of his conviction and sentence within fourteen days of
the entry of judgment.
II. Discussion
In his Motion, Micolta-Sinisterra argues he “was denied
the effective assistance of counsel in violation of the
[Sixth] Amendment when [his] prior court-appointed attorney
refused to file a direct appeal on [his] behalf.” (Civ. Doc.
# 1 at 4).1 “It has been this Court’s experience that such a
claim must be brought before the Court at considerable expense
and inconvenience to the United States Marshals Service, as
well as the United States Attorney’s Office which must utilize
its overstretched resources by having an Assistant United
States Attorney respond to the motion and later prepare for
and attend a hearing.” Cooper-Miller v. United States, No.
8:11-cr-553-T-33AEP, 2014 WL 11412834, at *1 (M.D. Fla. May
5, 2014).
Additionally, Micolta-Sinisterra’s partial waiver of
appellate rights in his plea agreement does not preclude him
1 His Motion is timely, and his claim is cognizable. (Civ.
Doc. # 7 at 6).
from raising his ineffective assistance of counsel argument.
See Id. (“[I]n light of the Eleventh Circuit’s opinion in
Gomez-Diaz v. United States, 433 F.3d 788 (11th Cir. 2005),
the fact that the Defendant executed a written plea agreement
containing a provision in which she waived her right to appeal
and collaterally challenge her sentence in the underlying
criminal case does not foreclose her from raising an
ineffective assistance of counsel claim based on trial
counsel’s alleged failure to pursue a direct appeal.”).
“In light of the foregoing, the Court concludes that the
interest of judicial economy would best be served by granting
the [Motion], but only to the extent that [Micolta-
Sinisterra] will be afforded an out-of-time appeal pursued by
appointed counsel.” Id. “In doing so, the Court will utilize
the procedure mandated by the Eleventh Circuit in United
States v. Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000).”
Id. As the Phillips court explained:
When the district courts of this circuit conclude
that an out-of-time appeal in a criminal case is
warranted as the remedy in a [Section] 2255
proceeding, they should effect that remedy in the
following way: (1) the criminal judgment from which
the out-of-time appeal is to be permitted should be
vacated; (2) the same sentence should then be
reimposed; (3) upon reimposition of that sentence,
the defendant should be advised of all the rights
associated with an appeal from any criminal
sentence; and (4) the defendant should also be
advised that the time for filing a notice of appeal
from that re-imposed sentence is [fourteen] days,
which is dictated by Rule 4(b)(1)(A)(i).
Phillips, 225 F.3d at 1201. Indeed, the Eleventh Circuit
“approves the granting of a motion to vacate without an
evidentiary hearing if the district court follows Phillips.”
United States v. Bankston, No. 8:16-cr-232-T-23CPT, 2018 WL
5279134, at *2 (M.D. Fla. Oct. 24, 2018). “A defendant does
not have a right to a new sentence hearing or a right to be
present when resentenced under the Phillips procedure.”
United States v. Robinson, 648 F. App’x 823, 824 (11th Cir.
2016).
In no way should the Court’s granting Micolta-
Sinisterra’s Motion be interpreted as a determination or
suggestion that his former counsel was in any manner
ineffective in her representation of Micolta-Sinisterra in
the criminal proceedings. See Bankston, 2018 WL 5279134, at
*2 (“Allowing a belated appeal yields to the need for judicial
economy (given the present peculiar state of pertinent law)
and neither includes nor suggests a determination that trial
counsel was ineffective.”). Rather, the Court is granting
Micolta-Sinisterra’s requested relief “only in the interest
of judicial economy” to avoid an evidentiary hearing. Cooper-
Miller, 2014 WL 11412834, at *1; see also United States v.
Howard, No. 8:15-cr-211-T-35TGW, 2017 WL 7371186, at *2 (M.D.
Fla. June 22, 2017) (emphasizing “that this determination to
grant a belated appeal in the underlying criminal case is
only made in the interest of judicial economy”).
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1) Silvio Segundo Micolta-Sinisterra’s 28 U.S.C. § 2255
Motion to Vacate, Set Aside, or Correct Sentence (Civ.
Doc. # 1; Crim. Doc. # 271) is GRANTED, but only to the
extent that he may file a belated appeal in the related
criminal case.
(2) The Court will enter an order in the related criminal
case vacating the original judgment and imposing the
identical sentence in a new judgment.
(3) The Clerk is directed to enter judgment for Micolta-
Sinisterra and to CLOSE this case.
DONE and ORDERED in Chambers in Tampa, Florida, this 7th
day of August, 2020.
fami 9p Heunapy (rei
VIRGINIA M. HERNANDEZ’COVINGTON
UNITED STATES DISTRICT JUDGE