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 TO VACATE, SET ASIDE, OR CORRECT SENTENCE FILED
PURSUANT TO 28 U.S.C. § 2255
SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE
THE COURT is the Motion  of Defendant Octavia Jermaine
Winters to Vacate, Set Aside, or Correct Sentence by a Person
in Federal Custody, filed pursuant to 28 U.S.C. § 2255.
Defendant seeks to set aside his April 22, 2016, Judgment of
Conviction  for theft of firearms from a licensed dealer
in violation of 18 U.S.C. § 922(u). Having considered
the issues presented, the record, and relevant legal
authority, the Court is of the opinion that the Motion should
be granted in part to permit Defendant to file an out-of-time
appeal, and dismissed without prejudice in all other
United States filed a Criminal Complaint  on August 6,
2015, charging that Defendant violated 18 U.S.C. §
922(u) by participating in the theft of firearms from a
licensed firearms dealer. On August 7, 2015, Robert G.
Harenski was substituted as appointed counsel for Defendant.
See Order . Defendant was later charged in a
First Superseding Indictment  filed on September 3, 2015,
with three criminal counts: (1) theft of firearms from a
licensed dealer, as prohibited by 18 U.S.C. § 922(u);
(2) receipt/possession or disposal of stolen firearms, as
prohibited by 18 U.S.C. § 922(j); and (3) possessing a
firearm as a convicted felon, as prohibited by 18 U.S.C.
§ 922(g)(1). First Superseding Indictment  at 1-3.
initially entered a plea of not guilty on September 10, 2015.
Minute Entry, Sept. 10, 2015. On January 8, 2016, Defendant
filed a Notice of Intent to Change Plea  to plead
guilty. Defendant entered into a written Plea Agreement 
with the Government and pleaded guilty to Count One of the
First Superseding Indictment  on January 11, 2016. Minute
Entry, Jan. 11, 2016. Pursuant to the Plea Agreement,
Defendant expressly waived “the right to appeal the
conviction and sentence imposed 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  at 5.
April 22, 2016, the Court sentenced Defendant to one hundred
twenty (120) months imprisonment with respect to Count One
and dismissed Count Two and Count Seven of the First
Superseding Indictment  on the Government's Motion.
Minute Entry, April 22, 2016. The Court ordered Defendant to
pay a $4, 000.00 fine; $9, 000.68 restitution, jointly and
severally with his co-defendants; and a $100.00 special
assessment. J.  at 5. The Court further sentenced
Defendant to a term of three years of supervised release upon
his release from imprisonment. Id. at 3. The
Judgment of Conviction  was executed and filed on April
22, 2016. Neither Defendant nor his counsel filed an appeal
of the Judgment within the time afforded by the Federal Rules
of Appellate Procedure.
pro se, Defendant filed a Motion  for Extension of Time
to File Appeal on October 31, 2016. The Court denied the
Motion  on November 16, 2016, finding that Defendant was
required to file a notice of appeal within 14 days of the
entry of the Judgment , which he failed to do. Order
 at 2. The Court further found that Defendant was only
permitted to seek an extension of the time to file a notice
of appeal within 30 days of the expiration of the 14-day
period following the entry of the Judgment .
Id. Because this time period had expired,
Defendant's Motion  for Extension of Time to File
Appeal was denied as untimely. Id. To the extent
Defendant sought to have his sentence vacated, set aside, or
corrected, the Court directed Defendant to file a motion
under 28 U.S.C. § 2255 asserting all grounds for such
filed the instant Motion to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody  pursuant to 28
U.S.C. § 2255 on January 10, 2017, along with a
Memorandum in Support . Defendant claims he was
subjected to ineffective assistance of counsel because, among
other things, his counsel failed to file a direct appeal
despite Defendant's request that he do so. Mot.  at
maintains that he is entitled to a new trial, and that his
sentence should be vacated because the Court applied various
sentencing enhancements in determining Defendant's
sentence that Defendant contends should not have been
applied. Mem.  at 5-6. Defendant further maintains that
he received ineffective assistance prior to pleading guilty
for several reasons, including that his counsel failed to
interview witnesses, to move for suppression of evidence, or
to object to sentencing enhancements recommended in the
Pre-Sentence Investigation Report , allegedly informing
Defendant that there was not a meritorious issue to present
to the Court on his behalf that would result in a lesser
sentence. Id. at 2, 5. Defendant also alleges that
he received ineffective assistance because counsel failed to
inform him of the consequences of entering a guilty plea.
Mot.  at 16.
Sixth Amendment to the United States Constitution guarantees
an accused the right to the assistance of counsel in defense
of a criminal prosecution. U.S. Const. amend. VI. This right
extends to the plea bargaining process, during which criminal
“defendants are entitled to the effective assistance of
competent counsel.” Lafler v. Cooper, 132
S.Ct. 1376, 1384 (2012) (quotation omitted). Claims of
ineffective assistance of counsel are properly asserted by
way of a § 2255 motion to vacate. See United States
v. Gaudet, 81 F.3d 585, 589 n.5 (5th Cir. 1996). A claim
asserting ineffective assistance of counsel survives a waiver
of the right to file a Section 2255 motion “only when
the claimed [ineffective] assistance directly affected the
validity of that waiver or the plea itself.” United
States v. Hollins, 97 F. App'x 477, 479 (5th Cir.
2004) (quoting United States v. White, 307 F.3d 336,
343 (5th Cir. 2002)). To succeed on a Section 2255 motion
asserting ineffective assistance, a defendant must
demonstrate that his trial counsel's performance fell
below an objective standard of reasonableness and that this
deficient performance prejudiced his defense. Strickland
v. Washington, 466 U.S. 668, 690 (1984).
Strickland, the United States Court of Appeals for
the Fifth Circuit has held that a failure to file an appeal
when requested constitutes per se ineffective
assistance of counsel and permits an out-of-time appeal.
United States v. Tapp, 491 F.3d 263, 265-66 (5th
Cir. 2007). This is so even where the defendant has waived
his right to a direct appeal. Id. Defendant has
submitted a declaration in which he states that he requested
his counsel file an appeal but that his counsel failed to do