Case 2:17-cr-14014-DMM Document 64 Entered on FLSD Docket 12/03/2018 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 18-14245-CV-MIDDLEBROOKS/White
RICHARD EUGENE FYE, III,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
_________________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
THIS CAUSE comes before the Court on Magistrate Judge Patrick A. White’s Report
and Recommendation (DE 20) (“Report”), recommending granting Movant Richard Eugene Fye,
III’s motion to vacate, filed pursuant to 28 U.S.C. §2255. Fye’s §2255 motion alleges that his
trial counsel was ineffective for failing to file a requested appeal and failing to file a pre-trial
motion to dismiss. (DE 8). The government responded to the motion, conceding that relief
should be granted as to the claim for failure to file a direct appeal. (DE 17).
Judge White’s Report recommends the Motion be granted in part, that the prior criminal
judgment be vacated, that the same sentence be re-imposed, and that Fye be permitted to file a
direct appeal, as directed by the procedures set forth in United States v. Phillips, 225 F. 3d 1198,
1200 (11th Cir. 2000). Judge White further recommends that Fye’s remaining claim be dismissed
without prejudice to file a §2255 motion once his conviction and sentence become final after
resolution of his direct appeal.
The Report was issued on November 7, 2018. Neither party has filed objections to the
Report and the time period within which to do so has now expired. When no party has timely or
properly objected, “the court need only satisfy itself that there is no clear error on the face of the

 Case 2:17-cr-14014-DMM Document 64 Entered on FLSD Docket 12/03/2018 Page 2 of 2

record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s note to
1983 addition (citation omitted).
Upon review of the Report and the record as a whole, I agree with Magistrate Judge
White’s conclusions. Accordingly, it is ORDERED AND ADJUDGED that:
(1) Magistrate Judge White’s Report and Recommendation (DE 20) is hereby
ADOPTED.
(2) Fye’s Motion to Vacate under 28 U.S.C. §2255 (DE 1), as amended, is GRANTED
IN PART, solely with respect to his claim that counsel was ineffective for failing to
prosecute a requested direct appeal.
(3) Fye’s sentence will be vacated and re-imposed by separate order.
(4) Fye is permitted to file a direct appeal of his conviction and sentence.
(5) Fye’s remaining claims are DISMISSED without prejudice for Fye to file a Section
2255 motion once his conviction and sentence become final after resolution of his
direct appeal.
(6) All further Orders and pleadings pertaining to re-sentencing and appeal shall be filed
on the criminal docket, Case No. 17-14014-CR-DMM.
(7) The Clerk of the Court is directed to CLOSE THIS CASE.
(8) All pending motions are DENIED AS MOOT.
DONE AND ORDERED in Chambers in West Palm Beach, Florida, this 30th day of
November, 2018.

Donald M. Middlebrooks
United States District Judge
Copies to:

Counsel of Record
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