United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DISMISSING IN PART WITHOUT PREJUDICE LEARTHUR NICIA
SILAS' 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 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   in
response to the Motion , and the Government has filed a
Response . 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
allow Silas to file an out-of-time appeal, and dismissed
without prejudice in all other respects.
December 7, 2016, a grand jury returned an Indictment 
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 .
retained John M. Colette and Sherwood A. Colette, and on
August 18, 2017, he pled guilty to Count Eight of the
Indictment , 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 .
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  at 5.
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. . 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. . The Judgment of Conviction  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.
pro se, Defendant timely filed the instant Motion  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.  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.
former counsel, John M. Colette and Sherwood A. Colette, have
submitted Affidavits  , 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.  . 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.   (emphasis removed). The
Government has also filed a Response  in opposition to
Defendant's Motion  to Vacate, taking the position
that Silas waived his right to any post-conviction relief and
is thus not entitled to any relief. Resp. .
Relevant legal standards
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.
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 (“Counsel performs in a
professionally unreasonable manner only by failing to follow
the defendant's express instructions with respect to an