United States District Court, M.D. Florida, Tampa Division
C. BUCKLEW United States District Judge
cause comes before the Court on Petitioner Wayne Winfred
Hamm's motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255, as well as a
supporting memorandum. (Civ. Docs. 3, 4). Petitioner also
filed a motion to amend or supplement his § 2255 motion
(Civ. Doc. 7), which the Court granted in part and denied in
part (Civ. Doc. 10). The Government filed a response in
opposition to the § 2255 motion, and Petitioner filed a
reply. (Civ. Docs. 8, 9). Upon review, the Court denies
Petitioner's § 2255 motion.
October 8, 2015, Petitioner pleaded guilty, pursuant to a
plea agreement, to being a felon in possession of firearms
and ammunition, in violation of 18 U.S.C. §§
922(g)(1) and 924(e) (Count I), and possession with intent to
distribute cocaine, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(c). (Crim. Docs 44, 45). According to
Petitioner's Presentence Investigation Report
(“PSI”), Petitioner qualified as an armed career
criminal pursuant to 18 U.S.C. § 924(e) (the Armed
Career Criminal Act (“ACCA”)) and United States
Sentencing Guideline (“U.S.S.G.”) §4B1.4 due
to three prior Florida drug convictions. (See Crim.
Docs. 57, ¶30; 61). These three prior drug offenses were
1) a 1994 conviction for delivery of cocaine, 2) a 1996
conviction for possession of cocaine with intent to sell or
deliver and sale of cocaine, and 3) a 1996 conviction for two
counts of sale of cocaine. (Crim. Doc. 57, ¶30).
faced a statutory minimum term of imprisonment of 15 years on
Count I and a statutory maximum of 20 years on Count II.
(Crim. Doc. 57, ¶100). As indicated in the PSI,
Petitioner's adjusted offense level of 32 with a criminal
history category of VI resulted in an advisory guideline
sentencing range of 210-262 months' imprisonment. (Crim.
Doc. 57, ¶101). Counsel for Petitioner objected to the
PSI's use of factual information concerning
Petitioner's criminal history to enhance his advisory
range. (Crim. Doc. 57, pg. 26-27).
sentencing, however, counsel for Petitioner conceded that
Petitioner was correctly designated as an armed career
criminal and that Petitioner was “properly
scored.” (Civ. Doc. 8-1, pg. 7). Counsel further stated
that there was no objection to “the accuracy of the
guidelines scored or the factual content as well.”
(Civ. Doc. 8-1, pg. 7). In any event, counsel argued for a
downward variance to 15 years' imprisonment because none
of Petitioner's prior convictions were for violent acts
and because of Petitioner's dysfunctional upbringing.
(Civ. Doc. 8-1, pg. 10-11). The Government did not object,
and the Court granted this request. (Civ. Doc. 8-1, pg.
20-24). Petitioner was sentenced to 15 years'
imprisonment (a 30-month downward variance) followed by three
years' supervised release. (Crim. Docs. 59, 60).
Petitioner did not file a direct appeal.
February 19, 2016, Petitioner timely filed his § 2255
raises two grounds for relief in his § 2255 motion. In
Ground One, Petitioner argues that he was “erroneously
sentenced as a career offender” because his counsel
ineffectively failed to challenge the use of Petitioner's
prior convictions as ACCA “qualifying predicate
convictions.” (Civ. Doc. 3, pg. 4). In Ground Two,
Petitioner contends that he is actually innocent of being an
armed career criminal because he does not have three or more
serious drug offenses. (Civ. Doc. 3, pg. 5). For the reasons
that follow, each argument lacks merit.
Ground One: Ineffective Assistance of Counsel
Strickland v. Washington, 466 U.S. 668, 687 (1984),
the Supreme Court created a two-part test for determining
whether a defendant received ineffective assistance of
counsel. First, a defendant must demonstrate that his
attorney's performance was deficient, which requires a
“showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel'
guaranteed . . . by the Sixth Amendment.” Id.
Second, a defendant must demonstrate that the defective
performance prejudiced the defense to such a degree that the
results of the trial cannot be trusted. See id.
succeed on an ineffective-assistance-of-counsel claim,
“the defendant must show that counsel's
representation fell below an objective standard of
reasonableness.” Id. at 688. The
reasonableness of an attorney's performance must be
evaluated from counsel's perspective at the time of the
alleged error and in light of all the circumstances. See
id. at 690. The movant carries a heavy burden, as
reviewing courts “must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action might be considered a sound trial
strategy.” Id. at 689 (citation and internal
quotation marks omitted).
showing that counsel erred is insufficient. See id.
at 691. Instead, the defects in counsel's performance
must be prejudicial to the defense. See id. at 692.
Therefore, a movant must establish that there was a
reasonable probability that the results would have been
different but for counsel's deficient performance.
See id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the
argues he was erroneously sentenced as an armed career
criminal because his counsel ineffectively failed to argue
that his prior state drug convictions under Florida Statute
§ 893.13 were not ACCA predicates. Under the ACAA, a
defendant convicted of violating § 922(g) is subject to
a 15-year mandatory minimum sentence if he or she has three
prior convictions for either a violent felony or a serious
drug offense committed on occasions ...