United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS, UNIED STATES MAGISTRATE JUDGE.
Matthew Timmerman filed a motion under 28 U.S.C. § 2255
to vacate, set aside, or correct his sentence. 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.
December 6, 2017, the grand jury in the Southern District of
Georgia charged Petitioner with one count of possession with
intent to distribute a controlled substance in violation of
21 U.S.C. § 841. United States v. Timmerman, CR
117-082, doc. no. 1 (S.D. Ga. Dec. 6, 2016) (hereinafter
“CR 117-082”). The charge carried a maximum term
of imprisonment of twenty years. CR 117-082, doc. no. 2. The
Court appointed attorney Melissa C. Bray to represent
Petitioner. See id., doc. no. 6.
Agreement to Plead Guilty
March 8, 2018, Petitioner waived his right to trial by jury
and pleaded guilty to the sole count of the indictment.
Id., doc. nos. 20-22. In exchange for the guilty
plea, the government agreed to (1) not object to a
recommendation for a two-point acceptance of responsibility
reduction; (2) 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. 22, pp.
3-4. The parties also stipulated the offense involved at
least twenty but fewer than forty grams of heroin for
purposes of U.S.S.G. § 2D1.1 and other specific offense
characteristics pursuant to U.S.S.G. § 2D1.1(b) do not
apply in this case. Id.
plea agreement contained the following factual basis for his
On or about May 12, 2017, in Richmond County, within the
Southern District of Georgia, the defendant herein: MATTHEW
TIMMERMAN, did knowingly and intentionally possess with
intent to distribute heroin, a Schedule I controlled
substance, in violation of Title 21, United States Code,
Id. at 1-2.
signing the Plea Agreement, Petitioner “entirely
waive[d] 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 5. Absent one of those
three conditions, “[Petitioner] explicitly and
irrevocably instruct[ed] his attorney not to file an
appeal.” Id. Petitioner also “entirely
waive[d] his right to collaterally attack his conviction and
sentence on any ground and by any method, ” except
based on a claim of ineffective assistance of counsel.
Id. at 5-6. By signing the Plea Agreement,
Petitioner additionally attested he “read and carefully
reviewed this agreement” with Ms. Bray and “that
his attorney has represented him faithfully, skillfully, and
diligently, and [Petitioner] is completely satisfied with the
legal advice given and the work performed by his
attorney.” Id. at 7, 9.
the change of plea hearing, Chief United States District
Judge J. Randal Hall queried Petitioner as to his competence
to proceed and found Petitioner was competent to enter a
guilty plea if he so desired. Id., doc. no. 29, p.
16. Petitioner testified under oath he had enough time to
discuss his case with Ms. Bray and that he was entirely
satisfied with counsel's preparation and handling of the
case. Id. at 6, 8. Judge Hall reviewed the charge to
which Petitioner was pleading guilty and the potential prison
term of not more than twenty years. Id. at 9-10, 13.
Hall explained the rights Petitioner would be waiving by
pleading guilty, and Petitioner affirmed he clearly
understood those rights. Among the list of 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. at 6-8. In addition, Judge Hall reviewed the
appeal and collateral attack waivers and their limited
exceptions, as well as confirmed that, other than the
promises the government made in the plea agreement, no one
had made him any promises in order to get him to plead
guilty. Id. at 9-10.
Judge Hall heard a factual basis for the guilty plea from
Richmond County Sheriff's Office Investigator Calvin
Swann. Id. at 13-15. Investigator Swann testified on
May 12, 2017, he and other members of the Richmond County
Sheriff's Office Narcotics Division executed a search
warrant at 2155 Richmond Avenue in Augusta, Georgia.
Id. at 14. Investigator Swann identified Petitioner
and three others at the residence. Id. at 15.
Investigators found approximately 29.9 grams of heroin in
Petitioner's pocket. Id. Petitioner admitted to
Investigator Swann he was the owner of the heroin.
Id. Investigator Swann testified, in his experience,
an ounce of heroin is a distribution quantity of heroin.
stated to Judge Hall he had no disagreement with anything
Investigator Swann recounted. Id. at 16. Petitioner
testified he was guilty of, and wanted to plead guilty to,
Count One of the indictment. Id.