United States District Court, D. South Carolina
ORDER AND OPINION
MARGARET B. SEYMOUR, Senior District Judge.
Movant Alfonda Jamison is a federal inmate currently housed at FCI-Williamsburg in Salters, South Carolina. On February 21, 2013, Movant, appearing pro se, filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255. Respondent United States of America (the "government") filed a response and motion for summary judgment on March 25, 2013. By order also filed March 25, 2013, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Movant was advised of the summary judgment procedures and the possible consequences if he failed to respond adequately. Movant filed a motion to amend his § 2255 motion on May 29, 2013. The government filed no response to Movant's motion to amend. The court hereby grants Movant's motion to amend and will address the issues raised therein.
I. FACTS AND PROCEDURAL HISTORY
Movant was indicted on March 16, 2011 and charged with conspiracy to possess with intent to distribute and distribute five kilograms or more of cocaine and fifty kilograms or more of marijuana, in violation of 21 U.S.C. § 846 (Count 1); and possession with intent to distribute a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(D) (Count 2). On April 14 2011, the government filed an Information pursuant to 21 U.S.C. § 851 in which it notified Movant that he was subject to increased penalties based upon four drug convictions in state court for which he was sentenced on August 20, 2003, i.e., possession with intent to distribute/distribution of crack cocaine; and possession with intent to distribute/distribution of other Schedule I, II, III controlled substance (three counts). ECF No. 12.
On July 23, 2011, Movant executed a plea agreement wherein he agreed to enter a plea of guilty to a lesser included charge of Count 1, that being conspiracy to possess with intent to distribute and to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846. ECF No. 77, ¶ 1. The plea agreement recited that the penalty in a case involving less than 5 kilograms but 500 grams or more of cocaine and one or more prior felony drug conviction was a minimum term of imprisonment of ten years and a maximum term of life imprisonment. Id . Among other things, the plea agreement provided that Movant agreed to provide truthful information to the government and to submit to polygraph examinations as requested by the government. Id . ¶¶ 8-9. The plea agreement also provided that any self-incriminating information provided by Movant as the result of the cooperation required by the agreement would not be used against Movant in determining his application range for sentencing pursuant to the United States Sentencing Commission Guidelines as long as Movant did not breach the terms of the plea agreement. Id . ¶ 10. The plea agreement also provided that Movant stipulated that he had one prior felony drug conviction and that he had been provided notice under 21 U.S.C. § 851. Id . ¶ 11. The plea agreement also provided that Movant waived his right to contest the conviction or sentence in any direct appeal or other post-conviction again, including any proceedings under § 2255, except as to claims of ineffective assistance of counsel or prosecutorial misconduct. Id . ¶ 15.
Movant came before the court on July 28, 2011 for a change of plea hearing. After conducting a thorough colloquy pursuant to Fed. R. Crim. P. 11, the court accepted Movant's plea of guilty. On August 8, 2011, Movant wrote the court that he wished to withdraw his plea. Movant stated that he had been pressured into entering the plea by his attorney and that he did not deserve a sentence of ten years to life incarceration. ECF No. 84. On August 16, 2011, Movant again wrote the court. Movant indicated that he had discussed the matter with his attorney and that he no longer wished to withdraw his guilty plea. ECF No. 85.
A presentence investigation report (PSR) was prepared by the United States Probation Office (USPO). ECF No. 102. The USPO indicated that the Drug Enforcement Agency (DEA) set up a wiretap in 2008 of certain drug targets in Orangeburg, South Carolina. Id . ¶ 48. As a result, certain individuals were interviewed by DEA agents pursuant to proffer agreements. Id . ¶ 14. Levoris Colter stated that he traded a 50 caliber Desert Eagle handgun to Movant for 11.2 grams of cocaine base and a quantity of marijuana. Colter stated that Movant's source of supply was his brother, Vernon Jamison. Colter also stated that he had distributed 14.8 grams of cocaine base for Movant on at least one occasion. Id . ¶¶ 16-17.
The PSR stated that DEA agents also interviewed a confidential source, who stated that he had sold Movant approximately 68, 038.5 to 90, 718 grams of marijuana and approximately 3.5 kilograms of powder cocaine. Id . ¶ 18. The PSR also recounted that DEA agents had interviewed Reginald Mack, who stated he had purchased large amounts of cocaine powder, cocaine base, and marijuana from Movant from around 1998 or 1999 until 2003, and again in 2007. Id . ¶¶ 19-20, 23. Mack also indicated that Movant always kept handguns, assault rifles, and shotguns at his residence. Id . ¶ 21.
The PSR also recounted that DEA agents interviewed Ulysses Daniels, who stated he had sold marijuana and cocaine powder to Movant. Id . ¶ 22. DEA agents also interviewed Terrance Bonnett pursuant to a proffer agreement. Bonnet stated that he had purchased marijuana, cocaine base, and ecstasy pills from Movant, and that Movant was always in possession of a firearm. Id . ¶¶ 25, 26.
The PSR described Movant's arrest on April 13, 2011, as well as the evidence gathered pursuant to a search warrant of Movant's residence, including ammunition and weapons; marijuana; drug paraphernalia, and currency. Id . ¶ 24. DEA agents interviewed Movant pursuant to a proffer agreement on May 13, 2011. Movant denied knowing about the firearms present in the residence, although he had seen "magazines and stuff." Id . ¶ 27. Movant denied any knowledge of Vernon Jamison being involved in the drug trade. Id . ¶ 28. Movant admitted to possessing only some marijuana and ecstasy in a Crown Royal bag. Id . ¶ 29. Movant further denied any involvement with cocaine except for acting as a middleman in the sale of seven grams of cocaine in 2011. Id . ¶ 31. Movant eventually admitted to providing powder cocaine to a cousin, who "cooked" it into cocaine base and gave it to Movant's uncle. Movant also admitted obtaining 127.58 grams of cocaine powder from Daniels on two or three occasions, and 255.15 grams of powder cocaine from Daniels on one occasion. Movant admitted to cocaine powder dealings with Greg Evans, Daniels, Alvin Miller, and his cousin and uncle during 2005-2011. Id . ¶ 32. Movant admitted to drug deals with Mack, Johnny Eaton, and "Dirty Jersey" in 2002 and 2003. Id . ¶ 33. Movant stated he obtained fifteen to twenty pounds of marijuana from Daniels, approximately one hundred pounds of marijuana from "Bubba, " and five pounds of marijuana from Shawn Price. Id . ¶ 34.
The PSR recounted that on August 11, 2011, Movant had been administered a polygraph by an examiner with the Federal Bureau of Investigation (FBI). Movant was asked a number of questions: (1) "Are you withholding information about Vernon Jamison's [Movant's brother] illegal drug trafficking?"; (2) Did the gun found with the bag of marijuana in the closet of your mother's trailer belong to you?"; (3) "Are you lying to me about how much [cocaine base] you sold?"; (4) "Are you lying to me about the amount of other illegal drugs you sold?". Movant answered "no" to each question. The polygraph examiner determined deception was indicated during the questions. Id . ¶ 37. Movant thereafter admitted lying about the full extent of his knowledge regarding the illegal drug activities of his brother, Vernon Jamison. Movant further provided information regarding other suppliers he had not disclosed during the proffer interview, including "Scrappy, " "June, " and "Dimitri." Id . ¶¶ 38-41.
Movant was held accountable for 4, 096.20 grams of cocaine base; 9, 613.4 grams of cocaine powder; 68, 038.5 grams of marijuana; and 287.5 grams of ecstasy pills, for a total marijuana equivalent of 16, 762.21 kilograms. These amounts included incriminating information provided by Movant pursuant to his proffer interview. Under the 2011 edition of the Guidelines, Movant's base offense level was 36. He received a two-level increase for possessing a dangerous weapon, for a total offense level of 38. Movant received no reduction for acceptance of responsibility because he had failed to pass the polygraph examination.
Movant was assessed one point for a conviction in Orangeburg County, South Carolina municipal court for possession of twenty-grams or less of marijuana or ten grams or less of hashish (U.S.S.G. § 4A1.1(c)); three points for the four convictions set forth in the § 851 Information (U.S.S.G. § 4A.1.1(a)); one point for a criminal domestic violence conviction in Orangeburg, South Carolina magistrate's court (U.S.S.G. § 4A1.1(c)); one point for possession of twenty-eight grams or less of marijuana or ten grams or less of hashish and criminal domestic violence in Orangeburg, South Carolina magistrate's court (U.S.S.G. § 4A1.1(c)); one point for criminal domestic violence in General Sessions Court for Orangeburg, South Carolina (U.S.S.G. § 4A1.1(c)); and one point for possession of twenty-eight grams or less of marijuana or ten grams or less of hashish in Orangeburg County, South Carolina municipal court (U.S.S.G. § 4A1.1(c)), for a total of eight. Because a maximum of four points may be counted under U.S.S.G. § 4A1.1(c), the total was revised to seven. In addition, Movant ...