United States District Court, E.D. Tennessee, Greeneville Division
REPORT AND RECOMMENDATION
Clifton L. Corker, United States Magistrate Judge
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.
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.
PROCEDURAL AND FACTUAL BACKGROUND
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
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
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
[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
[Doc. 35, ¶ 9].
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
A. Yes, sir.
Q. … Did you read the stipulation of facts contained
in paragraph 3 of this plea ...