Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hamm v. United States

United States District Court, S.D. Georgia, Augusta Division

June 14, 2019

JASON LATAURUS HAMM, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE

         Petitioner filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Petitioner raises two ineffective assistance of counsel claims, including a claim trial counsel failed to file a notice of appeal when directed to do so. The Court appointed attorney Kurt Worthington to represent Petitioner at an evidentiary hearing on this “lost appeal” claim. Based on the evidence of record, the Court REPORTS and RECOMMENDS the § 2255 motion be DENIED, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.

         I. BACKGROUND

         A. Indictment and Pretrial Proceedings

         On May 3, 2017, the grand jury in the Southern District of Georgia charged Petitioner in a three-count indictment. United States v. Hamm, CR 117-027, doc. no. 1 (S.D. Ga. May 3, 2017) (hereinafter “CR 117-027”). Along with naming Petitioner in a forfeiture allegation, the grand jury charged Petitioner with: possession with intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, and an amount of marijuana (Count One), possession of a firearm in furtherance of a drug trafficking crime (Count Two), and possession of firearms by a convicted felon (Count Three). Id. Count One carried a possible statutory sentence of not less than five years nor more than forty years imprisonment. Id., doc. no. 2. Count Two carried a possible term of imprisonment of not less than five years and up to life imprisonment, and Petitioner faced a prison sentence of not more than ten years for Count Three. Id.

         The Court appointed attorney Christopher Cosper to represent Petitioner. Id., doc. no. 13. Mr. Cosper filed eight pretrial motions, (id., doc. nos. 16-23), including a motion for disclosure of exculpatory material under Brady v. United States, 397 U.S. 742 (1970), (CR 117-027, doc. no. 18). The government responded to the defense motions, and the Court directed the parties to submit a joint status report explaining whether all pretrial motions had been satisfied or resolved, and if not, identifying which motions required a court hearing. Id., doc. nos. 24, 25. The joint status report stated the Brady motion, as it related to information about a controlled buy, had not been resolved. Id., doc. no. 26. The Court set a hearing on that motion for July 18, 2017. Id., doc. no. 27.

         However, on July 17, 2017, the Court received a signed plea agreement, and the hearing on the Brady motion was cancelled. Id., doc. entries dated July17, 2017. On July 19, 2017, the Court scheduled a change of plea hearing for August 3, 2017. Id., doc. no. 28.

         B. Guilty Plea

         On August 3rd, Petitioner appeared with counsel and pled guilty to the lesser included offense of Count One of possession with intent to distribute controlled substances and to possession of a firearm by a convicted felon as charged in Count Three. Id., doc. nos. 30-32. In exchange for the guilty plea, the government agreed to (1) dismiss the remaining counts against Petitioner in the indictment; (2) not object to a recommendation for a two-point acceptance of responsibility reduction and move for an additional one-point reduction under the Sentencing Guidelines if Petitioner's offense level was sixteen or greater prior to the acceptance of responsibility reduction; and (3) consider filing a motion, based on any “substantial assistance” provided by Petitioner, for downward departure under U.S.S.G. § 5K1.1 or requesting a reduction of Petitioner's sentence under Fed. R. Crim. P. 35. Id., doc. no. 32, (Plea Agreement), pp. 5, 7-8.

         Petitioner's Plea Agreement contained the following factual basis for his guilty plea:

Count One
The elements necessary to prove the offense charged in Count One are: (1) that the defendant knowingly possessed a controlled substance, specifically methamphetamine, and; (2) that the defendant possessed the controlled substance with the intent to distribute it. Defendant agrees that he is, in fact, guilty of this offense. He agrees to the accuracy of the following facts, which satisfy each of the offense's required elements: That on or about the 11th day of January 2017, in Richmond County, within the Southern District of Georgia, the defendant: JASON LATAURUS HAMM did knowingly and intentionally possess with intent to distribute a mixture or substance containing a detectable amount of methamphetamine, and an amount of marijuana, Schedule II and I controlled substances respectively, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C).
Count Three
The elements necessary to prove the offense charged in Count Three are (1) that Defendant knowingly possessed a firearm in or affecting interstate commerce; and (2) that, before possessing the firearm, Defendant had been convicted of a felony, that is, a crime punishable by imprisonment for more than one year.
Defendant agrees that he is, in fact, guilty of this offense. He agrees to the accuracy of the following facts, which satisfy each of the offense's required elements: That on or about the 11th day of January 2017, in Richmond County, within the Southern District of Georgia, the defendant herein, JASON LATAURUS HAMM having been convicted of the following crimes punishable by imprisonment for a term exceeding one year:
• Possession With Intent to Distribute Cocaine, in the Superior Court of Richmond County, State of Georgia, 2007-RCCR-1528, convicted on January 15, 2008;
• Possession of Cocaine, in the Superior Court of Richmond County, State of Georgia, 2007-RCCR-834, convicted on January 15, 2008; • Possession of Cocaine and Possession of a Firearm by a Convicted Felon, in the Superior Court of Richmond County, State of Georgia, 2005-RCCR-1557, convicted on August 8, 2006; [and]
• Possession of Cocaine, in the Superior Court of Richmond County, State of Georgia, 98-RCCR-1625, convicted on June 29, 1999;
did knowingly possess, in and affecting commerce, certain firearms, those are: a Ruger, Model P90, .45 caliber pistol, serial number 661-83369; a Chinese, Model SKS 7.62 x 39 caliber rifle, serial number 9014705; and a Bushmaster Firearms, Model XM15-E2S, .223/5.56mm caliber rifle, serial number L415528 said firearms having been shipped and transported in interstate and foreign commerce; in violation of Title 18, United States Code, Section 922(g)(1).

Id. at 1-3. With his signature on the Plea Agreement, Petitioner agreed he read and carefully reviewed it with Mr. Cosper, understood each provision, voluntarily agreed to it, and “stipulate[d] that the factual basis set out therein is true and accurate in every respect.” Id. at 13.

         By signing the Plea Agreement, Petitioner further agreed to “entirely waive[] his right to a direct appeal of his conviction and sentence on any ground” unless the Court (1) sentenced him above the statutory maximum, (2) sentenced him above the advisory Sentencing Guidelines range, or (3) the government appealed the sentence. Id. at 9. Absent one of those three conditions, “[Petitioner] explicitly and irrevocably instruct[ed] his attorney not to file an appeal.” Id. Further, Petitioner waived his right to collaterally attack his conviction and sentence on any ground other than ineffective assistance of counsel. Id. By signing the Plea Agreement, Petitioner additionally attested Mr. Cosper had “represented him faithfully, skillfully, and diligently, and he is completely satisfied with the legal advice given and the work performed by his attorney.” Id. at 10-11.

         At the guilty plea hearing, Chief United States District Judge J. Randal Hall first confirmed no one had threatened or pressured Petitioner into pleading guilty and that he clearly understood where he was and why he was in court. Id., doc. no. 50 (“Rule 11 Tr.”), pp. 3, 5. Judge Hall reviewed all three charges against Petitioner in the indictment and confirmed Petitioner intended to plead to a lesser included offense of Count One and to Count Three. Id. at 5-7. Petitioner confirmed he had as much time as he needed to talk to Mr. Cosper about the charges. Id. at 7. Petitioner also testified under oath he was satisfied with the assistance he had received from Mr. Cosper, had read and reviewed the Plea Agreement with counsel before signing it, and understood everything in the Plea Agreement. Id. at 8, 10.

         Judge Hall also explained the rights Petitioner would be waiving by pleading guilty, and Petitioner affirmed he clearly understood those rights. Id. at 8-10. Among the rights explained, Judge Hall reviewed the right to trial by jury, the presumption of innocence, the government's burden to prove guilt beyond a reasonable doubt, the right to present and cross-examine witnesses, and the right to remain silent. Id. Judge Hall also specifically reviewed the appeal and collateral attack waiver provisions of the Plea Agreement. Id. at 13. Judge Hall confirmed that other than the Plea Agreement, no one on behalf of the government had promised anything to procure the guilty plea. Id. Additionally, Judge Hall reviewed the potential for a twenty-year term of imprisonment on the lesser included drug offense in Count One and for a ten-year term of imprisonment for conviction on the felon in possession charge in Count Three. Id. at 14. When asked, Petitioner confirmed that he understood the possible imprisonment penalties, as well as the potential $1, 250, 000 total fine and three years of supervised release after serving the prison term. Id.

         Judge Hall further explained that upon entry of the guilty plea, he would order the preparation of a Presentence Investigation Report (PSI), and Petitioner's sentence would be based on the information in the PSI. Id. at 15-16. Judge Hall specifically explained the PSI would calculate an advisory Sentencing Guidelines range, but he could sentence Petitioner within the range, below the range, or above the range. Id. at 17. Petitioner stated that he understood the sentencing process described by Judge Hall and that no one had promised him he would receive a particular sentence. Id. at 17.

         Judge Hall next reviewed the elements of the offenses the government would have to prove at trial to obtain convictions on the charges to which Petitioner was pleading guilty, and the government called Investigator Capitosti with the Richmond County Narcotics Division to provide the factual basis for the guilty pleas. Id. at 17-19. Inv. Capitosti testified that upon execution of a search warrant at 2020 ½ Richmond Avenue in Augusta, he and other investigators encountered Petitioner near a sink containing several baggies of methamphetamine tablets and a firearm later determined to have been stolen. Id. at 20. Investigators discovered approximately 202 grams of methamphetamine, five vacuum-sealed bags of marijuana, three firearms, and approximately $17, 463 during the search of the residence. Id. After advisement of his Miranda rights, Petitioner admitted to possession of the drugs and firearms discovered at the residence. Id.

         After Inv. Capitosti concluded his testimony, Judge Hall asked Petitioner if there was anything related to the two guilty plea counts he disagreed with and whether Petitioner was a convicted felon at the time he possessed the weapons discovered during the search. Id. at 21-22. Petitioner had no disagreement with the testimony and confirmed his status as a convicted felon. Id. Petitioner further confirmed his continuing desire to plead guilty to the lesser included drug offense of Count One and to Count Three. Id. at 22.

         Judge Hall then summarized the proceedings as follows:

With the entry of the signed plea into the record of this proceeding, the Court now finds that the Defendant, Mr. Hamm, is competent. He fully understands the charges against him. The Court has heard an independent factual basis for his plea of guilty containing each of the essential elements of these two offenses. He knows the statutory punishment that could be imposed on each of these charges and he knows his jury rights which he has knowingly and voluntarily waived. I further find that Mr. Hamm's decision to plead guilty this morning was voluntary, knowing, and not as a result of any force, pressure, threats, or promises other than the promises made by the Government in the signed Plea Agreement. Therefore, the plea is accepted, and I now adjudge Mr. Hamm guilty of the lesser included offense of count one and count three based upon his plea.

Id. at 23.

         C. Post-Plea, Pre-Sentencing, Ex Parte Hearing

         After the United States Probation Office prepared the PSI and Mr. Cosper requested and received an extension of time until December 18, 2017, to file objections, Petitioner wrote a letter dated January 25, 2018, expressing concern with Mr. Cosper's representation and asking to “exempt” Mr. Cosper from the case. Id., doc. nos. 35-37. The Court convened an ex parte hearing with Petitioner and Mr. Cosper where Petitioner expressed his dissatisfaction with Mr. Cosper's failure to greet his mother when she took paperwork to his office and about Petitioner's concerns with signing the Plea Agreement after the Court had already scheduled a hearing on his Brady motion. Id., doc. no. 57 (Ex Parte Hr'g Tr.), pp. 4-5. Petitioner further explained he had “seen quite a few loopholes in this case where I might just do want to change my plea and go straight to trial due to the fact that they want, you know, give me so much time anyway.” Id. at 5.

         Petitioner acknowledged Mr. Cosper told him if Petitioner insisted on the hearing rather than accepting the Plea Agreement offered, and then lost his motion after the hearing, Petitioner would also lose his favorable Plea Agreement. Id. at 12. Although Petitioner maintained he did not know a hearing had been scheduled at the time he signed the Plea Agreement, he had no explanation for why the scheduling of the hearing made any difference to his decision to accept the Plea Agreement in light of the fact that he had the critical information about withdrawal of the Plea Agreement if he insisted on pursuing the information about the controlled buy. Id. at 31, 40-42. Petitioner further explained once he saw the PSI, he began taking a harder look at his case and thought he might like to face twelve jurors rather than face the term of imprisonment set forth in the PSI. Id. at 15-17.

         Mr. Cosper explained when the government first produced the discovery, Petitioner questioned the basis for the warrant that resulted in officers searching his residence and finding the drugs and guns upon which his federal charges were based. Id. at 19-21. The warrant had been obtained in part on an officer's sworn testimony he had been surveilling Petitioner's residence based on information from a confidential informant (CI), and the officer put in the warrant affidavit the CI had performed a controlled buy at the property. Id. at 20. As Petitioner was confident a controlled buy had never occurred at his residence, Mr. Cosper sought information about the controlled buy. Id. at 20-21.

         The government did not want to jeopardize the CI and resisted turning over information about the controlled buy, arguing that because Petitioner was indicted for what was found in the residence, not for anything that occurred during the controlled buy, the CI information did not have to be produced. Id. at 21. The government did, however, offer a plea agreement to dismiss Count Two, an important concession because it removed a mandatory five-year consecutive sentence from Petitioner's potential sentence exposure. Id. at 21-22. When Mr. Cosper requested the hearing set for July 18, 2017, the government withdrew the plea offer. Id. at 22.

         Mr. Cosper explained to Petitioner that if he wanted to continue pursuing information about the CI and controlled buy, he faced exposure to a potential, additional five years in prison. Id. at 23. Thus, Petitioner faced a critical juncture in his case: accept a favorable Plea Agreement, or turn it down in pursuit of additional information about a controlled buy that may or may not pan out in Petitioner's favor. Id. at 24-25, 40. Petitioner chose the favorable Plea Agreement. Id. at 25-26. Petitioner conceded he signed the Plea Agreement because he did not want to take the risk of losing the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.