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Hamm v. United States

United States District Court, M.D. Florida, Tampa Division

August 18, 2017



          SUSAN C. BUCKLEW United States District Judge

         This 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.

         I. Background

         On 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).

         Petitioner 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).

         At 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.

         On February 19, 2016, Petitioner timely filed his § 2255 motion.[1]

         II. Discussion

         Petitioner raises two grounds for relief in his § 2255 motion. In Ground One, Petitioner argues that he was “erroneously sentenced as a career offender”[2] 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.

         A. Ground One: Ineffective Assistance of Counsel

         In 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.

         To 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).

         Simply 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 outcome.” Id.

         Petitioner 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 ...

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