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United States v. Kotsonis

United States District Court, E.D. Tennessee, Greeneville Division

December 8, 2016

UNITED STATES OF AMERICA,
v.
STEVEN THOMAS KOTSONIS, Defendant.

          REPORT AND RECOMMENDATION

          Clifton L. Corker, United States Magistrate Judge

         This matter is before the Court pursuant to 28 U.S.C. § 636 and by Order of Reference from the District Court referring the matter for an evidentiary hearing [Doc. 92]. The matter has been fully briefed, and an evidentiary hearing was held on December 2, 2016.

         I. INTRODUCTION

         Defendant Steven Thomas Kotsonis (“Kotsonis”) filed a Motion to Vacate, Set Aside or Correct his Sentence pursuant to 28 U.S.C. § 2255, [Doc. 58, 59], raising a number different issues pertaining to whether he received ineffective assistance of counsel. One of those claims pertains to whether trial counsel failed to “timely file a notice of appeal despite [Kotsonis's] explicit instruction to do so.” [Doc. 92, pg. 1]. The District Court, after reviewing the petition, “determined that an evidentiary hearing as to this claim only [was] necessary…” and referred the matter to the undersigned to conduct “the necessary evidentiary hearing” on that claim alone. Id.

         II. PROCEDURAL AND FACTUAL BACKGROUND

         The Grand Jury returned a three count indictment charging Kotsonis with obstructing, delaying, and affecting commerce by robbery in violation of the Hobbs Act; using, carrying, and brandishing a firearm during a crime of violence; and being a felon in possession of a weapon. [Doc. 1]. Kotsonis entered a plea agreement in which he stipulated to the following facts:

a) On April 12, 2011, in the Eastern District of Tennessee, Steven Thomas Kotsonis entered the Video Plaza store located at 2510 South Roan Street, Johnson City, Tennessee. Kotsonis was wearing a black hooded jacket, blue jeans and a dark colored bandana over his face. Kotsonis was carrying a handgun.
b) Once inside, Kotsonis demanded money from the store clerk, Noah Naseri. Naseri complied, giving Kotsonis the nightly deposit and money from the store safe. Kotsonis also took Naseri's wallet and watch. Kotsonis then fled the scene. A total of $777.93 was estimated to have been stolen.
e) Kotsonis and [co-defendant] Benenati were … questioned by investigators with the Johnson City Police Department. Both individuals were advised of their Miranda rights and made written waivers thereof. Kotsonis went on to give a written confession, while Benenati gave a verbal confession. Jackson [Kotsonis's girlfriend] also provided a written statement against both Kotsonis and Benenati. Subsequently, Kotsonis and Jackson gave consent to a search of their residence at 485 Chuckey Ruritan Road South. The search uncovered a Bersa, model Thunder, .380 caliber, semi-automatic pistol and a Colt, model Detective Special, .38 caliber revolver, along with ammunition for each weapon. Another bandana matching those worn during the robbery was also found. The watch taken from Nasiri was recovered as well.

[Doc. 35, ¶ 4]. He also agreed to waive, with limited exceptions, any right to file a direct appeal or to collaterally attack his conviction as follows:

9. (a) In consideration of the concessions made by the United States in this agreement and as a further demonstration of the defendant's acceptance of responsibility for the offense(s) committed, the defendant agrees not to file a direct appeal of the defendant's conviction(s) or sentence, except the defendant retains the right to appeal a sentence imposed above the sentencing guideline range determined by the district court or above any mandatory minimum sentence deemed applicable by the district court, whichever is greater.
(b) In addition, the defendant knowingly and voluntarily waives the right to file any motions or pleadings pursuant to 28 U.S.C. § 2255 or to collaterally attack the defendant's conviction(s) and/or resulting sentence. The parties agree that the defendant retains the right to raise, by way of collateral review under § 2255, claims of ineffective assistance of counsel or prosecutorial misconduct not known to the defendant by the time of the entry of judgment.

[Doc. 35, ¶ 9].

         On November 13, 2012, he entered his plea before the District Court [Doc. 36, Minute Entry]. At that hearing, the following colloquy occurred:

Q. Now, as I said earlier, there's been a plea agreement filed in this case. Have you read this plea agreement or had it read to you?
A. Yes, Your Honor.
Q. And has your attorney explained to you all the terms of and conditions of this plea agreement you've entered into with the Government?
A. Yes, sir.
Q. Do you fully understand all the terms and conditions of the plea agreement you've entered into with the United States?
A. Yes, sir.
Q. … Did you read the stipulation of facts contained in paragraph 3 of this plea ...

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