United States District Court, S.D. Mississippi, Northern Division
MICHEAL HURST, JR. United States Attorney
O. Chalk Assistant United Slates Attorney
Levell Singleton Defendant
P. JORDAN III, CHIEF UNITED STATES DISTRICT JUDGE.
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
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
. 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.
February 25, 2019, Singleton filed a five-ground § 2255
Motion  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.  at 2-4.
U.S.C. § 2255
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.
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  ¶ 8. So the waiver is
no bar to the current motion.
Ineffective Assistance of Counsel
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).
Right to Hearing
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.
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.
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.  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.
begin, the plea agreement itself includes the following
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
Agreement  at 5. 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:
and Defendant's attorney of record declare that the terms
of this plea agreement have been:
1. READ BY OR TO DEFENDANT;
2. EXPLAINED TO DEFENDANT BY DEFENDANT'S ...