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Holbdy v. United States

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


January 9, 2009

CHRISTOPHER HOLBDY, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

DECISION AND ORDER*fn1

On November 16, 2005, petitioner Christopher Holbdy filed a pro se Motion to Vacate, Set Aside or Correct the sentence he received on December 17, 2004. 05-CV-1470, Dkt. No. 1 ("Motion to Vacate"). That sentence was imposed on Holbdy after he pleaded guilty before this Court on March 23, 2004 to the first count of a Superceding Indictment returned against him by a grand jury sitting in this District. See 03-CR-0243, Dkt. Nos. 307, 308.

In his Motion to Vacate, Holbdy asserts that he was deprived of his right to the effective assistance of appellate counsel when such counsel failed to pursue an appeal of Holbdy's sentence with the Second Circuit Court of Appeals. See Motion to Vacate. Petitioner specifically argues that his criminal history category was improperly enhanced by this Court at the time he was sentenced, and that appellate counsel rendered ineffective assistance by failing to pursue an appeal challenging the propriety of Holbdy's sentence. Id. at attached pp. 8-12.

On April 8, 2008, Assistant United States Attorney John Katko, Esq. ("AUSA Katko"), the attorney for the respondent, filed a letter-brief with the Court in which he acknowledged that Holbdy had the right to pursue an appeal in the related criminal action, and suggested that an evidentiary hearing was necessary to ascertain whether Holbdy instructed his counsel to pursue an appeal in that criminal matter. See 05-CV-1470, Dkt. No. 8.

On April 15, 2008, this Court scheduled an evidentiary hearing to resolve the factual matters in dispute in Holbdy's § 2255 Motion, and appointed William R. Bartholomae, Esq. to represent

Holbdy at such hearing. See Text Order of Court (4/15/08). The day before that hearing was to commence, Attorney Bartholomae filed with the Second Circuit a Motion for Permission to File a Late Notice of Appeal. See 03-CR-243, Dkt. No. 823. Attorney Bartholomae noted in that submission that Holbdy claims that he requested that his counsel pursue an appeal of the sentence imposed on him by this Court following his guilty plea, but that no such appeal was perfected by counsel. Id. In that application, Attorney Bartholomae also notes that AUSA Katko has consented to Holbdy's request for permission to pursue a late appeal. Id.

Based upon the foregoing, this Court has dismissed Holbdy's § 2255 motion without prejudice to him re-filing a challenge to his sentence under § 2255 after the matter currently before the Second Circuit has been finally resolved.

WHEREFORE, for the reasons discussed herein, it is hereby ORDERED that Holbdy's Motion to Vacate (05-CV-1470, Dkt. No. 1) is DISMISSED WITHOUT PREJUDICE for the reasons stated above, and it is further

ORDERED that the Clerk of Court serve a copy of this Memorandum-Decision and Order upon the parties to this action by electronic mail.

IT IS SO ORDERED.


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