United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DISMISSING IN PART WITHOUT PREJUDICE DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE
HALIL SULEYMAN OZERDEN, District Judge.
BEFORE THE COURT is Defendant Wilton Joseph Cuevas's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody . Defendant seeks to set aside his November 14, 2012, Judgment of Conviction  for conspiracy to commit violations of federal firearms laws and engaging in the business of selling firearms without a license. The Government has filed a Response , and Defendant's former counsel has filed an Affidavit  in response. Having considered the issues presented, the record, and relevant legal authorities, the Court is of the opinion that the Motion should be granted in part to allow Defendant to file an out-of-time appeal and dismissed without prejudice in all other respects.
A. Factual Background
On April 17, 2012, Defendant was charged with conspiracy in violation of 18 U.S.C. § 371 and engaging in the business of selling firearms without a license in violation of 18 U.S.C. § 922(a)(1)(A). Indictment 1-10, 17 . Defendant pleaded not guilty to both counts. Minute Entry, June 4, 2012. On June 5, 2012, Ellen Allred was appointed as counsel for Defendant, but on June 7, 2012, Ms. Allred withdrew as counsel and Mack Bethea was appointed as Defendant's counsel. Order Granting Mot. to Withdraw and Appointing Counsel 1 .
On August 2, 2012, Defendant filed a Notice of Intent to Change Plea  to plead guilty. On August 8, 2012, Defendant entered into a written Plea Agreement  with the Government and pleaded guilty to Count One and Count Thirty of the Indictment. Minute Entry, Aug. 8, 2012. Pursuant to the Plea Agreement, Defendant expressly waived "the right to appeal the conviction and sentence in this case" and "the right to contest the conviction and sentence or the manner in which the sentence was imposed in any post-conviction proceeding...." Plea Agreement 4, ¶¶ 7(a) and (b). Defendant also entered a sealed Plea Supplement  on August 8, 2012, setting forth various obligations on Defendant's part and the Government's part. Mr. Bethea represented Defendant throughout the plea bargaining process.
On November 14, 2012, the Court sentenced Defendant to sixty months imprisonment with respect to Count One and twenty-six months imprisonment on Count Thirty. Minute Entry, Nov. 14, 2012. The Court ordered that the terms of imprisonment would run consecutively and ordered Defendant to pay a $10, 000.00 fine and $200.00 special assessment. Id. The Court further sentenced Defendant to a term of three years' supervised release upon Defendant's release from imprisonment. Judgment and Conviction 3 . The Judgment and Conviction  was executed and filed on November 16, 2012.
B. Procedural Background
Proceeding pro se, Defendant filed the instant Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody  ("Motion to Vacate") on October 21, 2013, along with a Memorandum in Support [464-1]. Defendant claims he was subjected to ineffective assistance of counsel stemming from his counsel's failure to file a notice of appeal as allegedly requested by Defendant. Mem. in Supp. 2-6 [464-1]. Defendant maintains that he desired to pursue an appeal because the Court applied various sentencing enhancements in determining Defendant's sentence, which enhancements Defendant contends should have been submitted to the grand jury and made a part of the Indictment. Id. at 2, 5-6.
On October 23, 2013, the Court entered a briefing schedule related to the Motion to Vacate, and Mr. Bethea was ordered to file an affidavit in response to Defendant's allegations by November 25, 2013. Text Only Order, Oct. 23, 2013. The Court further ordered the Government to file any response in opposition to the Motion to Vacate on or before December 30, 2013. Id. By December 31, 2013, Mr. Bethea had not filed his affidavit, and the Government sought an order compelling Mr. Bethea to file an affidavit and extending the Government's response deadline for an additional thirty days from the date that Mr. Bethea filed his affidavit. Mot. to Compel Aff. from Defense Counsel and for Time to File Supplemental Resp. to Mot. to Vacate, Set Aside, or Correct Sentence 1-2 .
Also on December 31, 2013, the Government filed its response in opposition  to the Motion to Vacate. The Government cites Defendant's Plea Agreement and argues that he has waived his right to contest both his conviction and his sentence. Resp. of United States to Mot. to Vacate 1-3, 5-6. The Government, however, acknowledges that the Fifth Circuit Court of Appeals has held that counsel's failure to file a notice of appeal when requested to do so constitutes ineffective assistance per se, such that the Government does not contest Defendant's request that he be permitted to file an out-of-time appeal. Id. at 4-5.
On January 8, 2014, the Court afforded Mr. Bethea an additional thirty days to file his affidavit in response to the Motion to Vacate. Text Only Order, Jan. 8, 2014. The Court also gave the Government thirty days from the date that Mr. Bethea's affidavit was filed to submit any supplemental brief necessitated by Mr. Bethea's affidavit. Id. On January 30, 2014, Mr. Bethea filed his Affidavit , and pursuant to that Affidavit, Mr. Bethea attests that Defendant never asked him to file a notice of appeal. Aff. 1 . To date, the Government has not filed a supplemental brief.
A. Legal Standard for a § ...