United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS, UNITED STATES MAGISTRATE JUDGE
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.
Indictment and Pretrial Proceedings
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.
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.
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.
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.
Plea Agreement contained the following factual basis for his
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)
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.
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.
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.
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.
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.
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.
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.
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.
Post-Plea, Pre-Sentencing, Ex Parte Hearing
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.
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.
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.
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.
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 ...