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govinfo:USCOURTS-kyed-5_16-cr-00085-5
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
V.
WESLEY SCOTT HAMM,
Defendant/Movant.
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Criminal Action No. 5: 16-085-DCR
and
Civil Action No. 5: 23-244-DCR
MEMORANDUM OPINION
AND ORDER
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A jury found Defendant/Movant Wesley Scott Hamm guilty of conspiracy to
distribute carfentanil, fentanyl, and heroin (Count 1); distribution of carfentanil that resulted
in death (Count 2); and distribution of carfentanil that resulted in serious bodily injury (Count
3).1 [Record No. 127] An Amended Judgment was entered on November 30, 2021, sentencing
Hamm to a total term of 480 months of incarceration.2 [Record No. 281]
I.
Hamm filed the instant motion to vacate his sentence, pursuant to 28 U.S.C. § 2255 on
August 22, 2023. [Record No. 314] He raises the following grounds for relief: (1) ineffective
1 A Third Superseding Indictment was filed May 4, 2017. [Record No. 86] A jury found
Hamm guilty of the underlying offenses on July 13, 2017. [Record No. 127] Following a second
trial which concluded on August 19, 2021, a jury found that Hamm was part of th e distribution
chain of carfentanil that led to Lonnie Kevin Willougby’s death, thus rendering him eligible for a
sentencing enhancement. [See Record No. 266.]
2 Hamm was sentenced to 240 months’ imprisonment on each of Count s 1 and 3, to run
concurrently with each other, and 360 months’ imprisonment on Count 2 . Of the term imposed
for Count 2, 240 months’ imprisonment was ordered to run consecutively to the term imposed for
Counts 1 and 3, and 120- months’ imprisonment was ordered to run concurrently with the term
imposed on Count 2 for a total term of 480 months. [Record No. 281]
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assistance of counsel, (2) a Fourth Amendment violation; (3) evidentiary issues, (4) receiving
an unfair sentence, (5) defects with the jury instructions during his second trial, and (6) issues
with his plea negotiations.3 [See Record No. 314.] The United States opposes Hamm’s
motion. [Record No. 319]
Consistent with local practice, Hamm’s motion was referred to a United States
Magistrate Judge for review and issuance of a Report and Recommendation (“R&R”) pursuant
to 28 U.S.C. § 636(b)(1)(B). United States Magistrate Judge Candace J. Smith issued her R&R
on April 30, 2024, recommending that Hamm’s motion to vacate be denied. [Record No. 325]
The R&R advised Hamm that he had 14 days to file “ specific written objections to any or all
findings or re commendations,” which would then be subject to de novo review by the
undersigned. [ Id. at 55] Hamm was cautioned that “[f]ailure to make a timely objection
consistent with the statute and rule may, and normally will, result in a waiver of further appeal
to or review by the District Judge and Sixth Circuit Court of Appeals.” [Id.]
While this Court must make a de novo determination of those portions of the R&R to
which an objection is made pursuant to 28 U.S.C. § 636(b)(1)(C), “[i]t does not appear that
Congress intended to require district court review of a magistrate’s factual or legal conclusions,
under a de novo or any other standard, when neither party objects to those findings.” Thomas
v. Arn, 474 U.S. 140, 150 (1985). In this case, Hamm has not filed any objections.
3 As Magistrate Judge Smith notes in her R&R, Hamm articulates eight separate grounds for
relief in his motion. Due to the considerable overlap between some of the issues raised, Magistrate
Judge Smith determined, and the undersigned agrees, that some issues can be analyzed together.
As such, both the R&R and this Memorandum Opinion and Order refer to six distinct grounds for
relief. [See Record No. 35, n.5.]
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II.
The factual and procedural history of this case is thoroughly and accurately captured in
Part I of the R&R so there is no need to repeat it here. Moreover, the undersigned agrees with
and adopts the R& R in its entirety . Nevertheless, t he undersigned has conducted a de novo
review and will address below the grounds of relief presented by Hamm and explain why each
fails.
A.
Hamm first asserts ineffective assistance of counsel , requiring him to demonstrate
“counsel’s performance was both constitutionally deficient and prejudicial .” Strickland v.
Washington, 466 U.S. 668, 686 (1984).
1.
Hamm alleges that , despite entering a not guilty plea, his court -appointed counsel,
Jeffrey Darling, conceded his guilt at both trials. [Record No s. 314, p. 5; 321, p. 1] This
conflicts with the Sixth Amendment’s guarantee of counsel, which recognizes that the ultimate
decision to admit guilt or maintain innocence belongs to the defendant alone. See McCoy v.
Louisiana, 584 U.S. 414, 417 (2018). Where counsel violates this right, it constitutes structural
error and relieves a petitioner of the need to demonstrate prejudice under Strickland. Id. at
428.
Magistrate Judge Smith notes that this argument fails with respect to the second trial.
After Hamm’s first appeal, the United States Court of Appeals for the Sixth Circuit affirmed
Hamm’s convictions on all counts and remanded the matter for a new trial “solely on the
question of whether to apply § 841(b)(1)(C)’s sentencing enhancement on the distribution
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counts.” [Record No. 197, p. 3] Because Darling was barred from relitigating the underlying
convictions at the second trial, acknowledging Hamm’s guilt was proper if not necessary.
If Darling had indeed conceded Hamm’s guilt during the first trial, Hamm may have a
persuasive argument, but that is not what happened. Hamm argues that his position “was that
[he] did not distribute any controlled substances.” [Record No. 321, p. 2] In light of the
overwhelming evidence to the contrary, it would have been entirely unreasonable for Darling
to take that approach.
Darling’s closing argument and overall trial strategy was objectively reasonable and
did not concede any of the charges or elements of those charges. See McCoy, 584 U.S. at 422
(“Trial management is the lawyer’s province: Counsel provides his or her assistance by making
decisions such as ‘what arguments to pursue, what evidentiary objections to raise, and what
agreements to conclude regarding the admission of evidence.’” Gonzalez v. United States, 553
U.S. 242, 248 (2008)). While Darling made comments that arguably acknowledged Hamm’s
prior possession of controlled substances, this approach was reasonable under the
circumstances. Darling unequivocally maintained that the drugs at issue in the case could not
be attributed to Hamm.
Absent a violation of McCoy (and assuming deficient performance had otherwise been
demonstrated), Hamm must also demonstrate that , “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Given
the overwhelming evidence against him, Hamm has failed to meet his burden.
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2.
Hamm next claims that Darling filed the second appeal without his knowledge and that
there were “many things that [he] needed to discuss before [his] brief was filed.” [Record No.
314, p. 3] The undersigned agrees that this argument fails for the three reasons cited in the
R&R. Firs t, Hamm’s bare assertions and contradict ed timeline of events fail to support his
claim that he was unaware of his appeal or that Darling did not consult with him. Even if that
were incorrect, Hamm does not suggest that he wished to exercise his right not to appeal, only
that he felt his insight was necessary prior to doing the action being taken. He supports this
by noting that he was responsible for United States v. Swiney being cited in his first appeal,
and that his “research lost on [the] premature f iling could’ve certainly been a remarkable
variable if it were included .” [Record No. 314 -2, p. 3] But the argument falls short to the
extent that he wished to assist in devising legal strategy. Deciding which arguments to raise
on appeal falls within the discretion and expertise of his attorney . See Smith v. Robbins , 528
U.S. 259, 288 (2000) (“In Jones v. Barnes, we held that appellate counsel who files a merits
brief need not (and should not) raise every nonfrivolous claim, but rather may select from
among them in order to maximize the likelihood of success on appeal.”).
Second, Hamm has failed to demonstrate that any alleged failure on Darling’s part was
constitutionally deficient. Hamm has not identified the arguments he claims Darling should
have raised, nor does he identify the “many things that [he] needed to discuss” with Darling or
how they would have impacted the outcome of his appeal. By failing to identify how Darling’s
action was deficient and how it allegedly prejudiced the outcome of the case , Hamm has not
met his burden. See Thomas v. United States, 849 F.3d 669, 679 (6th Cir. 2017).
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Third, by failing to demonstrate a specific deficiency Hamm necessarily fails to
demonstrate a reasonable probability that that the outcome of his second appeal would have
been different had Darling consulted with Hamm regarding research or legal strategy.
For these reasons, the undersigned agrees that Hamm is not entitled to relief due to
ineffective assistance of counsel.
B.
Hamm’s second assertion is that his Fourth Amendment rights were violated when
police officers forcibly entered his “dwelling” without a warrant to conduct a “welfare check.”
[Record No. 314, p. 6] As a result of the alleged unlawful entry, he believes the evidence
obtained that night should be inadmissible. But by not raising this issue on direct appeal, the
argument was procedurally defaulted.
4 See Regalado v. United States, 334 F.3d 520, 528 (6th
Cir. 2003) (“Section 2255 is not a substitute for a direct appeal, and thus a defendant cannot
use it to circumvent the direct appeal process.”).
Although there is a narrow exception to this rule, Hamm would have to demonstrate
“cause and prejudice” to excuse his failure to raise the claims previously. See Ray v. United
States, 721 F.3d 758, 761 (6th Cir. 2013). And while ineffective assistance of counsel can
constitute the requisite showing of “cause,” Hamm’s unsupported conclusory assertion that the
failure to raise the claim was due to ineffective assistance of counsel is insufficient. Wallace
v. United States , 43 F.4th 595, 602 (6th Cir. 2022) ; see Elzy v. United States , 205 F.3d 882
(6th Cir. 2000).
4 The R&R sufficiently dispenses with that argument t o the extent that Hamm intends this
as a separate ineffective assistance of counsel claim. [See Record No. 325, Section II.B.2.b.]
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C.
Hamm claims in his third ground for relief that the prosecution presented three separate
packages of drugs that were obtained in controlled buys “against someone who wasn’t even at
trial.” [Record No. 314-2] He indicates that the buys took place before the Third Superseding
Indictment alleges the conspiracy charged had started and believes this improperly induced the
jury to believe the drugs were associated with him.
But again, this issue was procedurally defaulted by not raising it on direct appeal .
Moreover, Hamm has offered no suggestion regarding how ineffective assistance of counsel
is to blame for th is alleged failure. Counsel for Hamm’s first appeal, Michael Losavio, was
not unaware of the significance of these drugs. In fact, the challenge to the Government’s
closing arguments was directly related to these drugs and the Government’s failure to provide
evidence connecting them to the DEA testing. As such, there’s no reason to believe the
decision not to pursue this challenge on direct appeal was anything other than a calculated and
strategic decision by experienced counsel. Absent any evidence to the contrary, the Court’s
“highly deferential” review of counsel’s performance fails to unearth evidence of inadequate
representation. See Strickland, 466 U.S. at 689.
D.
Hamm raises several alleged sentencing errors in his fourth ground for relief. [See
Record No. 314.] As indicated in the R&R, Hamm’s challenge to the Court’s sentence, which
fell within the advisory Sentencing Guidelines range, is not cognizable on collateral review.
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Furthermore, this argument is procedurally defaulted because Hamm failed to raise these
concerns on direct appeal and has provided no basis to excuse this failure.5
E.
Next, Hamm argues that the jury received improper instructions during his second trial.
[See Record No. 314, p. 10.] He alleges that the jury was advised that he “was already guilty
of the charge they were deciding.” [Id.] But this simply is incorrect.
The Statement of the Case made clear that “the jury will be asked to determine whether
one or both of the defendants were in the chain of distribution to [the decedent].” [Record No.
302, p. 11] The undersigned’s Preliminary Statement included a reading of Count 2 of the
Third Superseding Indictment, which was referred to as the “ original charge.” [Record No.
303, p. 2] In so reading, it was noted that the charge was “alleged,” and not necessarily in
accordance with the findings of the previous trial. [ Id.] The jury’s role was made very clear
to them: “I want to emphasize that the defendants are only on trial for the particular sentencing
enhancement charged in the indictment. Your job is limited to deciding whether the
government has proved the sentencing enhancement.” [ Id. at 10] A similar statement was
made giving Jury Instruction No. 13. [See id. at 11–12.]
Jury Instruction No. 25 provided Judicial Notice of the fact that Hamm had been
convicted of three federal crimes. [ Id. at 17–18] When advising the jury as to Count 2, the
undersigned merely noted a conviction for “[d]istribution of carfentanil on or about August
5 The R&R also discusses, in full, the merits of this argument. As the undersigned adopts
those findings and conclusions, they need not be readdressed herein. [See Record No. 325, Section
II.B.4.c.]
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24, 2016, in Montgomery County, Kentucky. ” [Id. at 17 ] The Judicial Notice omitted
reference to the sentencing enhancement at issue.
Hamm challenged Jury Instruction No. 13 on direct appeal but the Sixth Circuit found
it to be proper. He is precluded from relitigating the argument in a § 2255 motion to the extent
he seeks to challenge that instruction now. By failing to raise other potential issues on direct
appeal, they are waived for purposes of collateral review. His allegation that his failure to
raise them on appeal is due to ineffective assistance of counsel is properly dispensed with in
the R&R. [See Record No. 325, Section II.B.5.a.]
F.
Finally, Hamm challenges the way plea negotiations were handled prior to trial, arguing
he was “forced into a trial,” [Record No. 314, p. 11] and “was never given an opportunity to
take a legitimate plea ,” [Record No. 314-2, p. 6] . Hamm places blame for this on both the
prosecution and his attorney. But t here is no constitutional right to a plea deal. See
Weatherford v. Bursey , 429 U.S. 545, 561 (1977) . When the United States chooses to offer
one, it can be conditioned on the defe ndant’s cooperation. Hamm’s disagreement with that
reality is not a matter for the Court to take up. A nd as for alleged ineffective assistance of
counsel, Hamm has not identified any conduct which he deems deficient. This claimed basis
for relief is without merit.
III.
Finally, the Court declines to issue a C ertificate of Appealability. See Rule 11 of the
Rules Governing § 2255 Proceedings; 28 U.S.C. § 2253(c)(1)(B). A Certificate of
Appealability may be issued only when the defendant makes “a subst antial showing of the
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denial of a constitutional right.” § 2253(c)(2). To satisfy that burden, Hamm is required to
show that reasonable jurists could debate whether the motion should have been resolved
differently or that the issues involved “deserve enc ouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
Here, reasonable jurists would not debate the conclusions reached herein. The majority
of Hamm’s arguments regarding counsel’s performance are nothing more than conclusory
allegations that counsel should have performed differently. Without more specific allegations
or a showing of how the defendant was prejudiced by counsel’s performance, these clai ms
cannot proceed. The remaining claims were either procedurally defaulted or constitute an
attempt to relitigate matters previously resolved.
IV.
Based on the foregoing analysis and discussion, it is hereby
ORDERED as follows:
1. The Report and Recommendation of the United States Magistrate Judge [Record
No. 325] is ADOPTED and INCORPORATED here by reference.
2. The defendant/movant’s motion to vacate, correct, or set aside his sentence
under 28 U.S.C. § 2255 [Record No. 314] is DENIED . His claims are DISMISSED , with
prejudice, and STRICKEN from the docket.
3. A Certificate of Appealability will not issue.
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Dated: June 28, 2024.
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