UNITED STATES OF AMERICA v. CLYDE

1
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ALPHONSO CLYDE, 	:
:
Movant, 	:
: 	Criminal No. 5:23-cr-00052-MTT-CHW-1
v. 	:
: 	Civil No. 5:25-cv-00276-MTT-CHW
UNITED STATES OF AMERICA, 	:
:
Respondent. 	:
________________________________ 	:
REPORT AND RECOMMENDATION
Movant Alphonso Clyde has filed a motion to vacate, set aside or correct his sentence
pursuant to 28 U.S.C. § 2255. (Doc. 90). Based on the analysis below, it is RECOMMENDED
that the Court GRANT the portion of the motion alleging ineffective assistance of counsel for
failure to file an appeal, VACATE its judgment, and resentence Movant Alphonso Clyde to the
same sentence so that Movant may commence a direct appeal. It is further RECOMMENED that
the remaining grounds of the motion be DISMISSED WITHOUT PREJUDICE.
This document memorializes an oral finding and accompanying recommendation made
during an evidentiary hearing held on December 9, 2025. The hearing addressed whether Movant’s
sentencing attorney, Mr. Melvin Raines,1 rendered ineffective assistance of counsel in relation to
Movant’s desire to appeal from his conviction pursuant to a guilty plea. See (Docs. 60, 61, 84).
There is no dispute that Mr. Raines did not file a notice of appeal in this case.
Testimony was elicited from Movant, Movant’s girlfriend Courtney Maxwell, and Mr.
Raines. Both Movant and Ms. Maxwell explained that Movant told Mr. Raines he wanted to file
1 Attorney Derek Wright, retained counsel, represented Movant when he entered his guilty plea. (Docs. 40,
60, 71). Movant terminated Mr. Wright and hired Mr. Raines, who represented Movant at his motion to
withdraw his plea hearing and at sentencing. See (Docs. 75; 76; 80; 81; 92, p. 3-5).
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an appeal after sentencing and that Mr. Raines said would file one. Movant testified that he spoke
with Mr. Raines about filing an appeal immediately after sentencing. Ms. Maxwell testified that
after Movant’s sentencing she had communication with Mr. Raines via text and in person about
filing the notice of appeal, to which Mr. Raines either said “ok” or stated that he had already filed
the appeal. While Mr. Raines questioned the success of a potential appeal, Mr. Raines did not
directly dispute Movant’s and Ms. Maxwell’s testimony. He mostly corroborated Ms. Maxwell’s
various attempts to communicate with Mr. Raines regarding whether he had filed the notice of
appeal in Movant’s case. Further, the evidence showed that Mr. Raines made no attempts to
communicate directly with Movant about any potential direct appeal after the sentencing date,
despite knowing Movant wanted to appeal. The weight of the testimony supports the finding that
Movant asked Mr. Raines to commence an appeal but that Mr. Raines did not file a notice of
appeal.
Based upon these evidentiary factors, the record shows that Mr. Raines was ineffective in
failing to commence a direct appeal on behalf of Movant Davis. Roe v. Flores–Ortega, 528 U.S.
470, 477 (2000) (“a lawyer who disregards specific instructions from the defendant to file a notice
of appeal acts in a manner that is professionally unreasonable”). For that reason, it is
RECOMMENDED that the Court vacate its judgment, reimpose the same sentence, advise
Movant of his appellate rights, and advise Movant of the 14-day window, running from the date
of the re-imposed sentence, to file a notice of appeal. See United States v. Phillips, 225 F.3d 1198,
1201 (11th Cir. 2000) (citing Fed. R. App. P. 4(b)(1)(A)(i)). It is further RECOMMENDED that
attorney Margaret Strickler be appointed to represent Movant on appeal.
Movant raised other issues in his pending Section 2255 motion. Because granting an out-
of-time appeal is meant to place a movant in a position as if the failure to file a notice of appeal
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had not occurred, it is RECOMMENDED that the remaining portions of his Section 2255 motion
be DISMISSED WITHOUT PREJUDICE. See McIver v. United States, 307 F.3d 1327, 1331
(11th Cir. 2002) (“an order granting a § 2255 petition, and reimposing sentence, resets to zero the
counter of collateral attacks pursued”).
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this
Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14)
DAYS after being served with a copy thereof. Any objection is limited in length to TWENTY
(20) PAGES. See M.D. Ga. L.R. 7.4. The District Judge shall make a de novo determination of
those portions of the Recommendation to which objection is made. All other portions of the
Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing
to object to a magistrate judge’s findings or recommendations contained in a report and
recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to
challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions
if the party was informed of the time period for objecting and the consequences on appeal for
failing to object. In the absence of a proper objection, however, the court may review on appeal
for plain error if necessary in the interests of justice.”
SO RECOMMENDED, this 9th day of December, 2025.
s/ Charles H. Weigle_________
Charles H. Weigle
United States Magistrate Judge
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