Order — United States v. Perez (Dkt. 38, W.D.N.C.)

Summary

An order in United States v. Evan Agustin Perez, No. 3:23-cr-194-FDW-SCR-1, in the U.S. District Court for the Western District of North Carolina, signed and filed February 13, 2025 as Document 38. The defendant had filed a pro se Motion to Vacate under 28 U.S.C. § 2255 arguing that trial counsel failed to file a requested notice of appeal, and the court set an evidentiary hearing and appointed counsel. After the defendant's pro se Withdrawal of Appeal (Doc. 35) and appointed counsel's Motion for an Order of Voluntarily Dismissal (Doc. 37), the order grants the dismissal motion, dismisses the Motion to Vacate (Doc. 27) without prejudice and strikes the withdrawal filing. It directs the Clerk to cancel the evidentiary hearing.

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UNITED STATES DISTRICT COURT
                       WESTERN DISTRICT OF NORTH CAROLINA
                              CHARLOTTE DIVISION
                               3:23-cr-194-FDW-SCR-1


UNITED STATES OF AMERICA,           )
                                    )
            Plaintiff,              )
                                    )
vs.                                 )
                                    )                           ORDER
EVAN AGUSTIN PEREZ,                 )
                                    )
            Defendant.              )
____________________________________)

        THIS MATTER is before the Court on the Defendant’s Motion for an Order of

Voluntarily Dismissal of the Defendant’s Motion to Vacate filed pursuant to 28 U.S.C. § 2255

[Doc. 37], and on the Defendant’s pro se “Withdrawal of Appeal” [Doc. 35].

        The Defendant filed a pro se Motion to Vacate pursuant to 28 U.S.C. § 2255 in which he

argues that trial counsel was ineffective for failing to file a notice of appeal pursuant to Defendant’s

request. [Doc. 27]. The Court ordered the Government to respond. [Doc. 28]. The Government

filed a Response in which it conceded that an evidentiary hearing is required on the Defendant’s

claim because prior counsel denies the Defendant’s allegations. [See Docs. 31, 31-1]. Accordingly,

the Court set an evidentiary hearing and appointed counsel to represent the Defendant for purposes

of the hearing. [See Doc. 32].

        On February 11, 2025, the instant pro se “Withdrawal of Appeal” dated February 4, 2025,

was docketed. [Doc. 35]. In it, the Defendant asks to “formally withdraw” his § 2255 Motion to

Vacate, and requests information regarding any additional steps that are required to “finalize this

withdrawal….” [Id. at 1]. On February 12, 2025, appointed counsel filed the instant Motion for an

Order of Voluntarily Dismissal, indicating that appointed counsel has conferred with the

                                                   1

    Case 3:23-cr-00194-FDW-SCR               Document 38         Filed 02/13/25      Page 1 of 2

Defendant regarding his Motion to Vacate and that the Defendant now wishes to voluntarily

dismiss the matter. [Doc. 37]. The Motion for an Order of Voluntary Dismissal indicates that the

Government does not object. [Id. at 3].

       The Defendant’s unauthorized pro se “Withdrawal…” will be stricken. See generally

McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (there is no right to “hybrid representation” in

which defendant is represented both by himself and by counsel); Cain v. Peters, 972 F.2d 748, 750

(7th Cir.1992) (representation by counsel and self-representation are mutually exclusive

entitlements in light of McKaskle).

       The Court has considered the relevant factors and counsel’s unopposed Motion will be

granted and this matter is dismissed without prejudice. See Fed. R. Civ. P. 41(a)(2); Howard v.

Inova Health Care Servs., 302 F. App’x 166, 178-79 (4th Cir. 2008) (citation omitted). The Clerk

will be instructed to cancel the scheduled evidentiary hearing.

       IT IS, THEREFORE, ORDERED, that:

       1. The Defendant’s Motion for an Order of Voluntarily Dismissal of the Defendant’s

           Motion to Vacate filed pursuant to 28 U.S.C. § 2255 [Doc. 37] is GRANTED.

       2. The pro se Motion to Vacate [Doc. 27] is DISMISSED WITHOUT PREJUDICE.

       3. The Defendant’s pro se “Withdrawal of Appeal” [Doc. 35] is STRICKEN.

       The Clerk is respectfully instructed to cancel the evidentiary hearing in this matter [see

Docs. 32, 33] and to mail a copy of this Order to Mr. Perez.
                                             Signed: February 13, 2025




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    Case 3:23-cr-00194-FDW-SCR             Document 38         Filed 02/13/25   Page 2 of 2

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