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United States v. Singleton

United States District Court, S.D. Mississippi, Northern Division

May 14, 2019


          D. MICHEAL HURST, JR. United States Attorney

          Erin O. Chalk Assistant United Slates Attorney

          Lester Levell Singleton Defendant



         This case is before the Court on Defendant Lester Levell Singleton's motion to vacate filed under 28 U.S.C. § 2255. Having now received an affidavit from Singleton's former attorney, John Colette, the Court concludes that Ground Five should be denied; an evidentiary hearing is necessary as to Grounds One through Four; and Singleton should be appointed counsel under Rule 8(c) of the Rules Governing Section 2255 Proceedings for the United States District Courts.

         I. Procedural History

         Singleton was named in a six-count indictment returned by a federal grand jury in the Northern Division of the Southern District of Mississippi on December 7, 2016. See Indictment [4]. Count Two charged Singleton with knowingly and intentionally importing a Schedule I controlled substance. On November 28, 2017, Singleton pleaded guilty to Count Two and signed a plea agreement.

         On February 25, 2019, Singleton filed a five-ground § 2255 Motion [99] based on ineffective assistance of counsel. Singleton claims Colette: (1) failed to adequately tally the amount of controlled substance attributable to Singleton; (2) failed to adequately argue for a downward variance; (3) failed to timely respond to a request to file a notice of appeal; (4) failed to file a timely notice of appeal; and (5) failed to adequately explain plea-agreement terms. See Def.'s Mem. [100] at 2-4.

         II. Standards

         A. 28 U.S.C. § 2255

         “A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). “Relief under . . . § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994) (quoting United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992)).

         Here, Singleton says his attorney provided ineffective assistance of counsel. An “ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.” Massaro v. United States, 538 U.S. 500, 504 (2003). Although Singleton's plea agreement contained a general waiver of the right to file a motion under § 2255, it provided that Singleton “reserves the right to raise ineffective assistance of counsel claims.” Plea Agreement [54] ¶ 8. So the waiver is no bar to the current motion.

         B. Ineffective Assistance of Counsel

         To establish ineffective assistance of counsel, a defendant must generally show (1) his “counsel's representation fell below an objective standard of reasonableness, ” and (2) this ineffectiveness was “prejudicial to the defense.” Strickland v. Washington, 466 U.S. 668, 692 (1984). Regarding ineffective assistance in the plea context, the defendant must show a “reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Regarding the alleged failure to file an appeal, the prejudice prong “is presumed ‘when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken.'” Garza v. Idaho, 139 S.Ct. 738, 744 (2019) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000)). This presumption applies even when-as here-the defendant waived his right to appeal. Id.; see also United States v. Tapp, 491 F.3d 263, 265 (5th Cir. 2007) (same).

         C. Right to Hearing

         Finally, Singleton is entitled to an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Relevant here, “contested fact issues ordinarily may not be decided on affidavits alone, unless the affidavits are supported by other evidence in the record.” United States v. Hughes, 635 F.2d 449, 451 (5th Cir. 1981), quoted in United States v. Noble, 73 Fed.Appx. 669, 670 (5th Cir. 2003).

         III. Analysis

         Grounds One and Two address Colette's performance leading up to and at the sentencing hearing. Grounds Three and Four assert that Colette failed to file a requested notice of appeal. Finally, Ground Five asserts that Colette failed to explain the appeal waivers found in the plea agreement. The Court will work backwards and start with the appeal waivers.

         A. Appeal Waivers

         Singleton asserts that he “was unaware that he had waived his right to appeal when he signed the plea agreement as encouraged by counsel.” Def.'s Mem. [100] at 4. He blames Colette for his ignorance of the terms, contending that he was shown the document at the plea hearing and was never provided ample time to read it. Id. at 16. The record fails to support this account.

         To begin, the plea agreement itself includes the following language:

8. Waivers. Defendant, knowing and understanding all of the matters aforesaid, including the maximum possible penalty that could be imposed, and being advised of Defendant's rights to remain silent, to trial by jury, to subpoena witnesses on Defendant's own behalf, to confront the witnesses against Defendant, and to appeal the conviction and sentence, in exchange for the U.S. Attorney entering into this plea agreement and accompanying plea supplement, hereby expressly waives the following rights (except that Defendant reserves the right to raise ineffective assistance of counsel claims and the right reserve in paragraph 10 of the Plea Supplement):
a. the right to appeal the conviction and sentence imposed in this case, or the manner in which that sentence was imposed, on the grounds set forth in Title 18, United States Code. Section 3742, or on any ground whatsoever, and

         Plea Agreement [54] at 5.[1] The agreement then states, in bold font, “Defendant waives these rights in exchange for the United States Attorney entering into this plea agreement and accompanying plea supplement.” Id. at 6. The agreement concludes by confirming the following just above Singleton's signature:

         Defendant and Defendant's attorney of record declare that the terms of this plea agreement have been:


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