United States v. Collett
6:18-cr-00067
W.D. La.Feb 7, 2022Background:
- Collett (defendant) filed: (1) a motion to file an out-of-time appeal and appoint new counsel, and (2) a § 2255 motion to modify sentence claiming ineffective assistance by retained counsel Piccione for not requesting his federal sentence run concurrently with a state sentence.
- Piccione withdrew; Magistrate Judge Hanna appointed the Federal Public Defender Blanchard, who urged construing the request as a habeas ineffective-assistance claim; Collett then filed the § 2255 motion formally.
- Collett is serving a 10-year state sentence for attempted armed robbery (Lafayette Parish, 2016 docket); the federal conviction arises from a separate matter tied to dismissed charges in other parishes.
- Collett also sought (a) credit for ~10 months in federal custody and (b) a downward departure under U.S.S.G. §5K1.1 for substantial assistance.
- The government opposed the out-of-time appeal; the court reviewed the record, the state dockets, and applicable law before ruling.
Issues:
| Issue | Collett's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for not seeking concurrent federal/state sentence | Piccione should have asked for concurrency because sentences arise from the same offense | The state conviction is unrelated; concurrency request would be denied; no prejudice | Denied — no prejudice; offenses distinct; court would have denied concurrency |
| Whether Collett is entitled to credit for ~10 months in federal custody | Time in federal custody pending finality should be credited toward federal sentence | Credit determination is for BOP; district court lacks authority; request premature | Denied as premature; BOP to decide upon transfer/back into federal custody |
| Whether Collett is entitled to a §5K1.1 or Rule 35 reduction for substantial assistance | Collett seeks downward departure for assistance | Government discretion to move under §5K1.1 or Rule 35; court cannot compel or grant sua sponte | Denied — court has no authority to order or compel a government motion |
| Whether an out-of-time criminal appeal should be allowed | Collett seeks to file an untimely appeal based on counsel’s failure | Government objects; Rule 4(b) deadlines are mandatory when government objects | Denied — government’s objection bars out-of-time appeal |
Key Cases Cited
- United States v. Frady, 456 U.S. 152 (procedural default limits collateral review)
- Bousley v. United States, 523 U.S. 614 (cause and prejudice or actual innocence required to excuse default)
- Strickland v. Washington, 466 U.S. 668 (two-prong ineffective-assistance test)
- United States v. Shaid, 937 F.2d 228 (presumption of finality after direct review)
- United States v. McAfee, 832 F.2d 944 (district court may clarify concurrent vs. consecutive intent)
- United States v. Caraveo-Nunez, 992 F.2d 323 (district court cannot award credit for time served; BOP authority)
- United States v. Martinez, 496 F.3d 387 (Rule 4(b) timing rules are claim-processing and waivable absent government objection)
- United States v. Leijano-Cruz, 473 F.3d 571 (when government objects, Rule 4(b) is mandatory and untimeliness bars relief)