United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
Westley Kayeon Kennedy, (“Kennedy”), who is
currently incarcerated at the Federal Correctional
Institution, Williamsburg in Salters, South Carolina filed a
Motion to Vacate, Set Aside, or Correct his Sentence pursuant
to 28 U.S.C. § 2255. (Doc. 1.) Respondent filed a
Response, (doc. 12), to which Kennedy filed Motions to Amend,
(doc. 16, 17), and an Amended Section 2255 Motion, (doc.
17-1). Respondent filed a Response to Kennedy's Amended
Section 2255 Motion, (doc. 18), and Kennedy filed a Reply,
(doc. 19). For the purposes of the Court's Order, the
Court GRANTS Kennedy's Motions to Amend,
(docs. 16, 17), and considers his Amended Motion, (doc.
17-1), as the operative pleading.
for the reasons which follow, the Court
DENIES Kennedy's Motion to Appoint
Counsel. (Doc. 20.) Further, I RECOMMEND
that the Court DENY Kennedy's Amended
Section 2255 Motion, DIRECT the Clerk of
Court to CLOSE this case and enter the
appropriate judgment of dismissal, and DENY
Kennedy a Certificate of Appealability and in forma
pauperis status on appeal.
Section 2255 Motion, Kennedy challenges a conviction and
sentence he received in this Court, after entry of a guilty
plea to the lesser included offense of conspiracy to possess
with intent to distribute, and to distribute, a quantity of
controlled substances, in violation of 21 U.S.C. § 846.
J., United States v. Kennedy, et al., 2:14-cr-12
(S.D. Ga. Feb. 23, 2015), ECF No. 627. Kennedy had a
recommended total offense level of 37 and criminal history
category IV. (Pre-Sentence Investigation Report
(“PSI”), ¶ 70.) Based on this offense level
and category, Kennedy's advisory sentencing guideline
range was 360 months to life. (Id.) However, the
statutory maximum term of imprisonment for the crime to which
he pleaded guilty is twenty (20) years, or 240 months.
See 21 U.S.C. §§ 846 and 841(b)(1)(C);
U.S.S.G. § 5G1.1(a); (PSI ¶ 70). The Honorable Lisa
Godbey Wood sentenced Kennedy to the maximum allowed 240
months' imprisonment. J., United States v. Kennedy,
et al., 2:14-cr-12 (S.D. Ga. Feb. 23, 2015), ECF No.
627. The Court appointed B. Reid Zeh, III to represent
Kennedy during these proceedings. CJA 20, United States
v. Kennedy, et al., 2:14-cr-12 (S.D. Ga. Apr. 11, 2014),
ECF No. 43.
2014, the grand jury for the Southern District of Georgia
returned a superseding indictment against Kennedy and twelve
others for twenty-two (22) violations of federal law.
Superseding Indictment, United States v. Kennedy, et
al., 2:14-cr-12 (S.D. Ga. June 4, 2014), ECF No. 208.
Specifically, Kennedy was charged with conspiracy to possess
with intent to distribute, and to distribute, fifty (50)
grams or more of a mixture of methamphetamine, and quantities
of cocaine and oxycodone, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), (b)(1)(C), and § 846
(Count 1); two counts of distribution of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and
18 U.S.C. § 2 (Counts 3, 4); and eight counts of use of
a communication facility (cell phones), in violation of 21
U.S.C. § 843(b) (Counts 7-8, 10-12, 16- 18).
(Id.) If convicted of each Count, Kennedy faced a
potential maximum sentence of 120 years' imprisonment,
fines totaling $9, 000, 000.00, or both. Penalty
Certification, United States v. Kennedy, et al.,
2:14-cr-12 (S.D. Ga. June 4, 2014), ECF No. 209.
Kennedy and his attorney, Mr. Zeh, were able to negotiate a
plea agreement with the Government whereby Kennedy agreed to
plead guilty to the lesser included offense of Count One,
violation of Section 846, in exchange for the Government
dropping the remaining charges. Plea Agreement, United
States v. Kennedy, et al., 2:14-cr-12 (S.D. Ga. July 15,
2014), ECF No. 425, pp. 2-3. As indicated above, the
statutory maximum term of imprisonment for the violation to
which Kennedy pleaded is twenty (20) years. Under the terms
of the plea agreement, Kennedy promised to, among other
things, acknowledge the factual basis of his plea, cooperate
with the government for a downward departure, waive his right
to direct appeal (with limited exception), and waive his
right to collaterally attack his sentence. Id. at p.
3. In return, the Government promised to refrain from
objecting to an acceptance of responsibility reduction, not
file a 21 U.S.C. § 851 enhancement, and to consider
whether Kennedy's cooperation sufficed for a downward
departure. Id. at p. 2.
appeared before Judge Wood for his change of plea, or Rule
11, proceeding. Judge Wood addressed Kennedy and informed him
the purpose of the hearing was to ensure that he understood
the case that was pending against him, that he understood all
of the rights he was waiving or giving up by pleading guilty,
and that there was a factual basis for the guilty plea.
Change of Plea Hr'g Tr., United States v. Kennedy, et
al., 2:14-cr-12 (S.D. Ga. June 10, 2015), ECF No. 666,
pp. 2-3. Judge Wood inquired whether anyone had forced
Kennedy to offer to plead guilty, and he said no one had done
so and that pleading guilty was what he wanted to do.
Id. at p. 3. Judge Wood told Kennedy that he did not
have to plead guilty, and if he chose to persist in his not
guilty plea, he would have the right to: a public and speedy
trial by jury; a presumption of innocence during that trial;
the assistance of trial counsel; see, hear, confront, and
cross-examine the Government's witnesses and evidence;
call witnesses on his behalf; and testify himself or remain
silent. Id. at pp. 6-8. However, Judge Wood
cautioned Kennedy he would be waiving these rights if he
pleaded guilty and if she accepted that guilty plea.
Id. at p. 8.
stated he understood. Id. at pp. 6-8. Kennedy also
stated he and Mr. Zeh reviewed the Superseding Indictment
together, that he had the opportunity to talk to Mr. Zeh
about the facts of his case, as well as about the proposed
plea agreement, and that Mr. Zeh had discussed the law and
procedure pertaining to his case. Id. at pp. 9-10.
Kennedy stated that he was satisfied with Mr. Zeh's
services and that he had no complaints whatsoever.
Id. at p. 12.
Wood reviewed the counts of the Superseding Indictment
applicable to Kennedy with him and the essential elements of
the crimes for which he was charged and that the Government
would have to prove if he went to trial. Id. at pp.
10-14. Judge Wood advised Kennedy of the maximum sentence she
could impose, twenty (20) years, for the crime to which he
was pleading. Id. at pp. 13-14. Moreover, Judge Wood
explained to Kennedy that, in imposing a sentence upon him,
she would have to take into consideration the advisory
Sentencing Guidelines and the factors set forth in 18 U.S.C.
§ 3553. Id. at pp. 14-15. Kennedy stated that
no one had promised him an exact sentence, and Judge Wood
explained that anyone's estimation of what his sentence
might be would in no way bind the Court. Id. at p.
15. Judge Wood then asked the Assistant United States
Attorney (“AUSA”) to summarize the provisions of
the plea agreement. AUSA Carlton Bourne stated:
Your Honor, the Government agrees not to object to a
recommendation from the Probation Office that the Defendant
receive a three-level reduction for acceptance of
responsibility based on the timeliness of his plea and
provided that he truthfully admits the conduct. The
Government agrees to dismiss the remaining counts of the
Superseding Indictment as to this Defendant. The Government
agrees not to file an 851 enhancement against this Defendant.
If the Defendant cooperates, the Government agrees to
consider his cooperation with the Government qualifies as
“substantial assistance” and warrants the filing
of a motion for downward departure or a motion to reduce
In exchange, the Defendant agrees to plead guilty to the
lesser included offense of Count One; acknowledge at the time
of the plea the truth of the factual basis; pay on the date
of sentencing any assessments imposed by the Court. If he
cooperates, he agrees to provide full, complete, candid, and
He agrees to waive his right to appeal with three exceptions.
And he agrees to entirely waive his right to collaterally
attack his conviction and sentence on any ground, including a
Section 2255 motion.
Id. at pp. 16-17. Judge Wood asked Kennedy if AUSA
Bourne's summarization of the plea agreement was
consistent with the plea agreement he signed, and he stated
it was. Id. at p. 17. Kennedy also stated he read
the plea agreement, and Mr. Zeh answered any questions he may
have had before he signed the agreement. Id. Kennedy
reaffirmed that no one had made him any promises regarding
the outcome of his case, other than the provisions contained
in the plea agreement. Id.
Wood then specifically addressed the direct appeal waiver
I want to follow up on something that Mr. Bourne referenced.
And that is, as a part of this plea agreement that you are
urging, it does contain a waiver of appellate rights. It
states: Defendant entirely waives his right to direct appeal
of his conviction. The Defendant agrees to waive his right to
appeal the sentence. Now there are three exceptions to that
appeal waiver. That is, if one of these three things were to
occur, you would be able to appeal directly, but only if one
of these three things were to occur. Number one, if I were to
sentence you above the statutory maximum, then you could
appeal that directly; or number two, if I were to sentence
you above the advisory guideline range as found by me, then
you could appeal that directly; or number three, if the
Government were to file a direct appeal, then you too could
file a direct appeal. But otherwise, aside from those three
situations, by virtue of this plea agreement that you are
proposing, you waive all other direct appeal rights.
Id. at pp. 17-18. Kennedy stated he understood this
provision. Id. Judge Wood also stated that the
proposed plea agreement contained a waiver of Kennedy's
collateral attack rights. When asked if he understood that
provision, Kennedy replied that he did and that he had no
questions whatsoever about it. Id. at p. 18.
Wood asked Mr. Zeh and AUSA Bourne whether they were aware of
any impropriety on the part of the Government in handling
Kennedy's case, and they both responded no. Id.
at p. 19. Judge Wood then asked Kennedy whether he wished to
still plead guilty to the lesser included offense of Count
One of the Superseding Indictment because he was in fact
guilty of that count, and he answered in the affirmative.
Id. Judge Wood also asked Kennedy whether he
understood the rights and privileges he was waiving if she
accepted his plea, and he said he did. Id. at pp.
19-20. Judge Wood determined Kennedy participated in the Rule
11 proceedings “knowingly” and
“intelligently.” Id. at p. 20. Further,
Judge Wood determined Kennedy's plea was
“knowing” and “voluntary, ” and
Kennedy agreed. Id.
Livingston, a special agent with the Drug Enforcement
Administration (“DEA”) in Savannah, provided the
Government's factual basis for the plea. Id. at
pp. 21-22. Special Agent Livingston testified that, in
addition to information gleaned from informants, the
DEA's investigation of Kennedy included a wiretap on his
personal phone and two controlled purchases of
methamphetamine from him. Id. This investigation
intercepted numerous telephone calls related to drug
distribution and revealed a conspiracy to distribute
methamphetamine, cocaine, and oxycodone in the Bacon County
area. Id. Mr. Zeh had no questions for Special Agent
Livingston on cross-examination. Id.
hearing from Kennedy again, during which time Kennedy agreed
with the Government's factual basis and admitted the
truth of Special Agent Livingston's testimony, Judge Wood
accepted Kennedy's plea and adjudged him guilty of the
lesser included offense of Count One of the Superseding
Indictment-violation of Section 846. Id. at p. 23.
Judge Wood advised Kennedy that the Probation Office would
prepare a PSI and the Court would schedule a sentencing
hearing after the PSI was disclosed to the Government and Mr.
PSI, the Probation Officer attributed at least 1, 024.9 grams
of “ice” methamphetamine to Kennedy, which
indicated a base offense level of 34, pursuant to United
States Sentencing Guidelines § 2D1.1. (PSI, ¶¶
19, 25.) The Probation Officer increased the offense level by
three, pursuant to United States Sentencing Guidelines §
3B1.1(b)(1), for his supervising role in the criminal
conspiracy. (PSI, ¶ 28.) Kennedy did not receive a three
point reduction under United States Sentencing Guidelines
§ 3E1.1 for accepting responsibility in a timely manner
because the Probation Officer found that Kennedy falsely
denied relevant conduct. (PSI, ¶¶ 23, 32.) The
Probation Officer recommended that Kennedy's total
offense level was 37. (PSI, ¶ 33). With a criminal
history of nine and a two-point increase for committing the
instant offense while under a criminal justice sentence, his
criminal history fell within category VI. (PSI, ¶
40-43.) With a total offense level of 37 and criminal history
category of VI, Kennedy's recommended advisory
Guidelines' range was imprisonment for 360 months to
life. (PSI, ¶ 70.) However, because the statutory
maximum term of imprisonment was 20 years, or 240 months,
Kennedy's Guidelines range was reduced to match that
maximum allowed sentence. (Id. (citing U.S.S.G.
§ 5G1.1(a).) Mr. Zeh filed objections to the PSI
concerning the contents of nine (9) intercepted phone calls,
the drug amount calculations, and the denial of an acceptance
of responsibility reduction. (PSI, Addendum.)
sentencing hearing, Judge Wood asked Kennedy whether he had
the opportunity to read and review the PSI and its addendum
with his attorney. Kennedy answered in the affirmative. Sent.
Hr'g Tr., United States v. Kennedy, et al.,
2:14-cr-12 (S.D. Ga. June 18, 2015), ECF No. 672, pp. 3-4.
Mr. Zeh noted that Kennedy had a remaining objection to the
PSI's characterization of one phone intercept, and that
he had withdrawn the other phone call objections.
Id. Kennedy asserted that what he really said in the
challenged phone call was “cutie of that girl or
gal” (referring to a quarter ounce of cocaine) rather
than “kilo of that gas” (referring to
methamphetamine). Id. at p. 5.
response, Special Agent Livingston stated the Government had
recorded 1, 907 pertinent phone calls related to drug dealing
during its sixty-day wiretap of two of Kennedy's phones;
the Government also conducted two controlled purchases of
methamphetamine from Kennedy, each of those for approximately
twelve grams. Id. at pp. 8-9. This investigation
revealed Kennedy's drug dealings with over fifty people,
some of whom were indicted and provided information about the
amount of drugs Kennedy dealt. Id. at pp. 10-11.
Special Agent Livingston testified that Kennedy was a
high-volume drug trafficker based on the sheer number of
transactions he took part in. Id. Special Agent
Livingston then read the transcript of the challenged phone
call aloud, and Mr. Bourne played the audio twice for Judge
Wood. Id. at pp. 14-15. On cross-examination, Mr.
Zeh pressed Special Agent Livingston on the probable meaning
of “cutie of that gal” and about the Government
informants against Kennedy. Id. at pp. 16-18.
Wood then overruled Kennedy's objection, finding that the
preponderance of the evidence showed the conclusion in the
PSI about this particular phone call to be
correct. Id. at pp. 22-23. However, Judge
Wood sustained Kennedy's acceptance of responsibility
objection and granted him a three-point reduction.
Id. Judge Wood reviewed the advisory Guidelines and
determined Kennedy's total offense level was 34 with a
criminal history category of VI, which called for 240 months
of imprisonment and three years' supervised release under
the advisory Guidelines. Id. Judge Wood also noted
that there was no statutory minimum sentence but there was a
twenty-year maximum sentence. Id. Mr. Zeh did not
call any witnesses on behalf of Kennedy. Id. AUSA
Bourne testified that Kennedy was given an opportunity to
cooperate for a downward departure but refused to do so and
concluded that Kennedy's conduct was deserving of the 240
months' Guidelines sentence. Id. at p. 24.
Kennedy then addressed the Court and apologized for his
actions. Id. at p. 25.
hearing from Mr. Zeh, the AUSA, and Kennedy, and having
reviewed the PSI and the sentencing factors of 18 U.S.C.
§ 3553, Judge Wood sentenced Kennedy to 240 months'
imprisonment and three years' supervised release.
Id. at pp. 25-26; J., United States v. Kennedy,
et al., 2:14-cr-12 (S.D. Ga. Feb. 18, 2015), ECF No.
627. Judge Wood remarked that she saw no reason to depart
from the guideline sentence called for in this case. Sent.
Hr'g Tr., United States v. Kennedy, et al.,
2:14-cr-12 (S.D. Ga. June 18, 2015), ECF No. 672, p. 26. In
addition, Judge Wood recommended Kennedy be evaluated for
possible participation in a substance abuse treatment program
during his incarceration. Id. Moreover, Judge Wood
reminded Kennedy of the appeal waiver provisions contained in
his plea agreement during the sentencing hearing.
his sentencing, Kennedy and Mr. Zeh executed a
Post-Conviction Consultation Certificate, in which Mr. Zeh
certified that he met with Kennedy, explained to Kennedy the
appellate process and his rights, advised Kennedy of the
advantages and disadvantages of filing an appeal, and asked
whether Kennedy was interested in appealing his conviction.
Notice, United States v. Kennedy, et al., 2:14-cr-12
(S.D. Ga. Feb. 19, 2015), ECF No. 623. After this
consultation, Kennedy “decided to file an appeal,
” and instructed Mr. Zeh to file it for him.
Id. Kennedy and Mr. Zeh signed this Notice.
Id. Kennedy then filed a direct appeal of his
conviction with the Eleventh Circuit Court of Appeals.
Notice, United States v. Kennedy, et al., 2:14-cr-12
(S.D. Ga. Feb. ...