United States District Court, D. South Carolina
ORDER AND OPINION
MARGARET B. SEYMOUR, Senior District Judge.
Movant Marvin Hampton is a federal inmate currently housed at FCI-Yazoo City in Yazoo City, Mississippi. On October 20, 2014, Movant, proceeding pro se, filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. ECF Nos. 94, 95. On November 16, 2014, Respondent United States of America (the "government") filed a motion to dismiss, asserting that Movant's § 2255 motion is barred as successive. By order filed November 17, 2014, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Movant was advised of the dismissal procedures and the possible consequences if he failed to respond adequately. Movant filed a response in opposition to the government's motion on December 11, 2014.
I. FACTS AND PROCEDURAL HISTORY
On June 8, 2005, a grand jury issued an indictment charging Movant with possession with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) (Count 1); and to using and carrying a firearm during and in relation to, and possessing the firearm in furtherance of, a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 2). On April 24, 2006, Movant pleaded guilty to Counts 1 and 2 pursuant to a plea agreement.
A presentence investigation report (PSR) was prepared by the United States Probation Office (USPO). Movant's criminal history category was I. As to Count 1, Movant was held accountable for 142.02 grams of cocaine base. His base offense level was 32. Movant received a three-level reduction for acceptance of responsibility, for a total offense level of 29 and a sentencing range under the United States Sentencing Guidelines of 87 to 108 months incarceration. However, Movant was subject to a mandatory minimum sentence of 120 months to life incarceration. See 21 U.S.C. § 841(a)(1), (b)(1)(A). Therefore, Movant's sentencing range became 120 months incarceration. As to Count 2, Movant was subject to a statutory minimum sentence of five years consecutive to any other term of imprisonment. See 18 U.S.C. § 924(c).
Movant appeared before the court for sentencing on November 28, 2006. He was sentenced to incarceration for a period of 180 months, consisting of 120 months as to Count 1 and 60 months as to Count 2, to run consecutively. Judgment was entered on November 30, 2006.
On February 17, 2012, Movant filed a motion to vacate pursuant to § 2255. Movant asserted that he did not possess a firearm during a drug trafficking activity and should not have received a sixty-month consecutive sentence under § 924(c). The government filed a motion to dismiss on March 5, 2012, asserting that (1) Movant's § 2255 motion was time-barred because it was not filed within the one-year limitations period set forth in 28 U.S.C. § 2255(f); and (2) Movant's claim was without merit and, moreover, waived because the claim was not raised on direct appeal. The court granted the government's motion to dismiss and denied Movant's § 2255 motion by order filed February 12, 2013.
In his current § 2255 motion, Movant asserts that the drug amounts for which he was held accountable resulted from factfinding by the court and the USPO. According to Movant, the drugs attributed to him served to increase his mandatory minimum sentence, in contravention of Alleyne v. United States, 133 S.Ct. 2151 (2013).
In Alleyne, the Supreme Court determined that, consistent with Apprendi v. New Jersey, 530 U.S. 466 (2000), any fact that, by law, increases a mandatory minimum sentence is an "element" that must be submitted to the jury. In Alleyne, the penalty for the crime of using or carrying a firearm in relation to a crime of violence increased from five years to seven years incarceration if the firearm was brandished, and to ten years imprisonment if the firearm was discharged. See 18 U.S.C. § 924(c)(1)(A). According to the Court, "[t]he essential point is that the aggravating fact produce[s] a higher range, which, in turn, conclusively indicates that the fact is an element of a distinct and aggravated crime. It must, therefore, be submitted to the jury and found beyond a reasonable doubt." Alleyne, 133 S.Ct. at 2162-63.
In his response to the government's motion to dismiss, Movant further contends that he received ineffective assistance of counsel during plea negotiations. Movant contends he was coerced and threatened by the government and his attorney into entering a plea of guilty. According to Movant, he did not commit the various acts alleged by the government and was not responsible for 50 grams or more of cocaine base for which he was indicted.
Movant's ineffective assistance of counsel claim is governed by Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney's performance is deficient when it is not reasonable under prevailing professional norms. Id. at 688. Movant also must demonstrate that he was prejudiced by trial counsel's alleged deficient performance, in that because of trial counsel's unprofessional errors, the result of the proceeding would have been different. See id. at 694. In Hill v. Lockhart, 474 U.S. 52, 58-59 (1985), the Supreme Court held that, in order to prove ineffective assistance of counsel subsequent to a guilty plea, a movant must show that (1) counsel's errors were below a standard of reasonable competence, and (2) but for those errors, the movant would not have pleaded guilty but would have proceeded to trial.
The government contends that Movant's § 2255 motion is barred because Movant has not obtained permission from the Court of Appeals from the Fourth Circuit to ...