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Silas v. United States

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

June 26, 2019

LEARTHUR NICIA SILAS
v.
UNITED STATES OF AMERICA

          MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DISMISSING IN PART WITHOUT PREJUDICE LEARTHUR NICIA SILAS' MOTION [126] TO VACATE, SET ASIDE, OR CORRECT SENTENCE, FILED PURSUANT TO 28 U.S.C. § 2255

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is the Motion [126] of Defendant Learthur Nicia Silas 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 December 18, 2017 Judgment of Conviction. Silas' former counsel, John M. Colette and Sherwood A. Colette, have filed Affidavits [134] [137] in response to the Motion [126], and the Government has filed a Response [135]. Having considered the issues presented, the record, and relevant legal authority, the Court is of the opinion that the Motion [126] should be granted in part to allow Silas to file an out-of-time appeal, and dismissed without prejudice in all other respects.

         I. BACKGROUND

         A. Factual background

         On December 7, 2016, a grand jury returned an Indictment [3] against Defendant Learthur Nicia Silas (“Defendant” or “Silas”) and three co-defendants. The eight-count Indictment charged Silas with: (1) one count of knowingly and intentionally conspiring to possess with intent to distribute cocaine hydrochloride, commonly known as “crack, ” in excess of 500 grams, in violation of 21 U.S.C. § 841(a)(1) and §846, and (2) two counts of knowingly and intentionally possessing with intent to distribute more than 50 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Indictment [3].

         Silas retained John M. Colette and Sherwood A. Colette, and on August 18, 2017, he pled guilty to Count Eight of the Indictment [4], which charged him with “knowingly and intentionally possess[ing] with intent to distribute more than 50 grams of a detectable amount of methamphetamine.” Id.; Plea Agreement [94]. Pursuant to a written Plea Agreement with the Government, Defendant reserved “the right to raise ineffective assistance of counsel claims, ” but otherwise 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 [94] at 5.

         On December 13, 2017, the Court sentenced Defendant to a three-hundred-and-sixty (360) month term of imprisonment with respect to Count Eight of the Indictment, and dismissed Counts One and Seven on the Government's Motion. Minute Entry, December 13, 2017; J. [116]. The Court also imposed a five (5) year term of supervised release and ordered Defendant to pay a $3, 000.00 fine and a $100.00 special assessment. J. [116]. The Judgment of Conviction [116] was filed on December 18, 2017. Neither Defendant nor his counsel filed an appeal of the Judgment within the time afforded by the Federal Rules of Appellate Procedure.

         B. Procedural background

         Proceeding pro se, Defendant timely filed[1] the instant Motion [126] to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. Silas asserts that “[b]y counsel lying that any appeal would be thrown in the trash[, counsel] denied [Defendant] the chance” to appeal. Mot. [126] at 6, 8, 10. Defendant also claims that counsel rendered ineffective assistance of counsel because they failed to request an evaluation of, or move for a variance based upon, his known mental health issues. Id. at 4. Silas further avers that, despite knowing that a co-defendant committed perjury regarding testimony about the quantity of drugs Silas sold, counsel failed to object. Id. at 7. Defendant requests an evidentiary hearing, asks the Court to permit him to file an out-of-time direct appeal, and seeks the appointment of new counsel. Id. at 12.

         Silas' former counsel, John M. Colette and Sherwood A. Colette, have submitted Affidavits [134] [137], in which they state that Silas never advised them of mental health issues and that Silas' claim that a co-defendant committed perjury is false. Affs. [134] [137]. Counsel do not address whether they consulted with Silas regarding an appeal but state that they have never told “any client that the Appellate Court would throw anything in the trash” and that Silas never expressly asked them to file an appeal, in part because “he was hoping that the Government would file a Rule 35, F.R. Crim. P. motion based on his attempted cooperation.” Affs. [134] [137] (emphasis removed). The Government has also filed a Response [135] in opposition to Defendant's Motion [126] to Vacate, taking the position that Silas waived his right to any post-conviction relief and is thus not entitled to any relief. Resp. [135].

         II. DISCUSSION

         A. Relevant legal standards

         According to the United States Supreme Court “[a] defendant claiming ineffective assistance of counsel must show (1) that counsel's representation ‘fell below an objective standard of reasonableness,' . . . and (2) that counsel's deficient performance prejudiced the defendant.” Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). This test applies to claims that counsel was constitutionally ineffective for failing to file a notice of appeal. Id. at 477.

         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 warrants an out-of-time appeal. United States v. Tapp, 491 F.3d 263, 265-66 (5th Cir. 2007); see also Roe, 528 U.S. at 478 (‚ÄúCounsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an ...


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