USA v. Cornilous

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
UNITED STATES OF AMERICA RESPONDENT
v. No. 6:14-60008-001
ANTHONY CORNILOUS, JR.. MOVANT
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Before the Court is the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28
U.S.C. § 2255 filed pro se by ANTHONY CORNILOUS, JR.. (“Cornilous”), an inmate confined
at the Forrest City Medium Federal Correctional Institution in Forrest City, Arkansas. ECF No. 31.
The Motion was referred for findings of fact, conclusions of law, and recommendations for the
disposition of the case. The United States of America (hereinafter referred to as the “Government”)
has responded to the Motion. ECF No. 34. The Court has considered the entire record, and this
matter is ready for decision. For the reasons stated below, the Court recommends the Motion to
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 65) be DISMISSED.
1. Background:
On March 19, 2014, Cornilous was named in a ten (10) count Indictment filed in the United
States District Court for the Western District of Arkansas. ECF No. 1. Each of counts 1-9 alleged
Cornilous, did possess with intent to distribute or actually distribute a mixture or substance
containing a detectable amount of cocaine base, or crack cocaine, in violation of Title 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2. Count 10 alleged Cornilous possessed a firearm in furtherance of a
drug trafficking crime on February 24, 2014 in violation of Title 18 U.S.C. § 924(c).
On April 2, 2014, Cornilous appeared for an arraignment before the undersigned. ECF No.
5. At this arraignment, Cornilous appeared and the Federal Defender was appointed as his counsel.
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Id. Cornilous entered a plea of not guilty to all counts of the Indictment. Id. On July 8, 2014,
Cornilous appeared with counsel before United States District Judge Susan O. Hickey and entered
a plea of guilty to Counts 8, 9 and 10 of the Indictment. ECF No. 21. On November 13, 2014,
Cornilous appeared before Judge Hickey for sentencing. ECF No. 28. Judge Hickey sentenced
Cornilous to 51 months in the Bureau of Prisons as to each of Counts 8 and 9 to be served
concurrently. He was also sentenced to 60 months as to Count 10 to be served consecutively to the
other two sentences. Finally, he was sentenced to three years supervised release on each count to
be served following his release from imprisonment. ECF No. 29. Cornilous did not appeal his
sentence.
2. Discussion:
On October 28, 2015, Cornilous timely filed a pro se Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255. ECF No. 31. The Government was ordered to Respond
and did so. The Court scheduled a hearing to consider evidence outside the record in this case
related to Cornilous’s claim defense counsel failed to file a notice of appeal as directed. The Court
appointed Mr. Bruce Eddy of the Federal Defender’s office to represent Cornilous at this hearing.
On September 8, 2016, Cornilous along with his counsel and counsel for the Government
appeared for the hearing. Cornilous, through counsel, orally moved to dismiss the pending Motion.
ECF No. 42. Counsel explained to the Court he had thoroughly discussed the matter with Cornilous
prior to the hearing, including the need to obtain permission from the United States Court of Appeals
for the Eighth Circuit before filing any future Motion pursuant to § 2255. Upon inquiry by the
Court, Cornilous advised he desired to dismiss his motion.
3. Recommendation:
Accordingly, based on the foregoing, it is recommended Cornilous’s oral Motion to Dismiss
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be GRANTED and this Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. §
2255 (ECF No. 31) be DISMISSED with prejudice. Pursuant to 28 U.S.C. § 1915(a), I recommend
the finding that an appeal from dismissal would not be taken in good faith.
The Parties have fourteen (14) days from receipt of this report and recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. The Parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 12th day of September 2016.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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