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Timmerman v. United States

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

July 25, 2019

MATTHEW WARD TIMMERMAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS, UNIED STATES MAGISTRATE JUDGE.

         Petitioner 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.

         I. BACKGROUND

         A. Indictment

         On 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.

         B. Agreement to Plead Guilty

         On 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.

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

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, Section 841(a)(1).

Id. at 1-2.

         By 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.

         During 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.

         Judge 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.

         Next, 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. Id.

         Petitioner 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.

         C. ...


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