Motion to reopen 2255 in the case of UNITED STATES OF AMERICA V. TERRY COLLEY, 2:94-CR-007-RLV

TERRY COLLEY V. UNITED STATES OF  AMERICA 2:98-CV-0082-RWS

Come now the petitioner Terry Colley, by and through pro se at this time, and respectfully moves the District Court to render legal adjudication for the first time of "ground one" within his 28 USC 2255 Motion to Vacate and Set Aside his federal Sentence.The petitioner files the instant motion pursuant to Rule 15(C)(2) of the Federal Rules of Civil Procedure; Clisby vs Jones 960 F.2d 925 (11th Cir. 1992) and Broadwater vs United States 292 F.3d  1302  (11th Cir. 2002). The above authorities do not impinge upon this court's jurisdiction or the provisions of the A.E.D.P.A. of 28 U.S.C. 2244(b)(2) for prerequisite filing in the court of appeals before considering the instant motion. Terry Colley's  Motion To Vacate, Set Aside or Correct his Federal Sentence was timely filed in this court on June 9, 1998. Document #34.  However, when it came time to address all of the constitutional claims within the 2255 motion for relief, the district court violated the Clisby rule in Ground one when it failed to render legal adjudication of "all claims for relief contained in Ground one." See Ground one (Document #34) with Document #41 (The District Court's Order denying 2255 relief).

In the November 9, 1998 Order denying Colley's 2255 Motion, the district court clearly failed to issue any factual findings or conclusions of law within "ground one" where this petitioner raised the claim that his trial counsel rendered constitutionally ineffective assistance that resulted in prejudice involving the outcome or results of a guilty plea. Id. at Documents #34 & #41. The district court instead addressed a claim that Colley had also raised inside ground one, about not receiving a psychological evaluation, but completely failed to address the issue surrounding the outcome of guilty plea proceedings that was also inside ground one. Id.at Document #41.

Therfore, Colley's instant motion for the court to adjudicate his unaddressed claim in ground one is a timely filed issue, not a new claim, but has never received the required legal adjudication under Clisby. In which, Clisby is legal precedent for this circuit that gives the district court jurisdiction to adjudicate the unaddressed constitutional claims that were timely filed.  The relief that petitioner requested in 1998 when he timely presented his claim was to be given a plea offer. Petitioner renews his request for relief and asks the court to grant him relief and allow him to the right of a plea offer.

In particular, when petitioner filed his 2255 motion he did not know that actual plea negotiations were conducted in this case on September 21, 1994 through November 21, 1994, with court appointed counsel having rejected a plea offer by the government prior to a trial in this case. In fact, during the above dates, Colley was not in federal custody, he was in state prison in Savannah, Georgia, serving a state prison sentence. Colley was never informed of the federal plea negotiations when he was taken into federal custody to stand trial. Ground one specifically alleged facts, if true, entitled Colley to the relief he requested. The district court was required to adjudicate his claim.

Petitioner is the only defendant that still remains incarcerated. Both of his codefendants each served less than 10 years in prison because they weren't sentenced to more than ten years in prison. And they both have been reunited with their friends and loved ones for more than 10 years. Terry have served almost 21 years incarcerated, since he was age 23 and his release date is 2053.

Petitioner request that the court adjudicate his claim and provide him with the relief he is entitled to and any other relief the court finds is appropriate.

Respectfully submitted this _____ day of January, 2015.


                         
Terry Colley
Reg#45043-019
Atlanta F.C.I.
P.O. BOX 150160
Atlanta, Georgia 30315