United States District Court, D. South Carolina
ORDER AND OPINION
MARGARET B. SEYMOUR SENIOR UNITED STATES DISTRICT JUDGE
Douglas Antonio Hammond (“Movant”), a prisoner proceeding pro se, seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 21, 2010, a federal grand jury returned a twenty-six count indictment against Movant and fourteen co-defendants. ECF No. 2. Movant was charged with conspiracy to possess with intent to distribute 500 grams or more of cocaine, 50 grams or more of cocaine base, and a quantity of marijuana (Count 1); possession with intent to distribute 5 grams or more of cocaine base (Counts 2 and 3); and possession with intent to distribute 50 grams or more of cocaine base (Count 8). ECF No. 2. On July 21, 2010, the Government filed an Information pursuant to 21 U.S.C. § 851 to establish Movant’s prior South Carolina state conviction for distribution of crack cocaine. ECF No. 272. On August 18, 2010, a federal grand jury returned a Superseding Indictment that raised the threshold quantity of powder cocaine in Count 1 to 5 kilograms or more as to all defendants. ECF No. 319. The Superseding Indictment remained the same with respect to the other charges against Movant. See ECF No. 319. On December 21, 2010, Movant entered a plea of guilty to Count 8 of the Superseding Indictment pursuant to a written plea agreement. See ECF Nos. 495, 500. The written plea agreement contained, among other things, a waiver of his right to a direct appeal.
Prior to sentencing, a presentence investigation report (“PSR”) was prepared in which Movant’s total offense level was calculated at 33. ECF No. 656 at 26. With a total offense level of 33 and a criminal history category of VI, Movant’s Sentencing Guidelines range was calculated at 240 to 293 months imprisonment. Id. However, calculating the powder cocaine and crack cocaine amounts at a 1:1 ratio, Movant’s new total offense level became 31. ECF No. 656 at 31. Based on the new offense level, Movant’s applicable guideline range became 188 to 235 months imprisonment. ECF No. 656 at 31. However, Movant was subject to a statutory minimum sentence of 240 months imprisonment. Id. Therefore, 240 months became the bottom of the guideline range. See U.S.S.G. § 5G1.1.
On July 13, 2011, the court held a sentencing hearing. The court applied the 1:1 ratio and sentenced Movant to the Bureau of Prisons for 240 months followed by 10 years of supervised release. ECF Nos. 797, 834.
On November 15, 2012, this court issued an order indicating that Movant might be entitled to resentencing pursuant to the Supreme Court’s decision in Dorsey v. United States, 132 S.Ct. 2321 (2012). ECF No. 1022. Movant filed a motion to reduce sentence pursuant to 18 U.S.C. § 3582(c)(2). ECF No. 1147. Movant asserted that based on the retroactive application of the Fair Sentencing Act as required by Dorsey, the mandatory minimum period of incarceration for Movant’s conviction was reduced from 240 months to 120 months. See ECF No. 1147. In a written order issued May 30, 2013, the court construed Movant’s motion to reduce sentence as a motion for relief under 28 U.S.C. § 2255. On June 20, 2013, this court granted Movant’s § 2255 motion and vacated his prior sentence. ECF No. 1175.
Prior to resentencing, a new PSR was prepared. ECF No. 1206. Movant’s total offense level was calculated at 33. ECF No. 1206 at 30. Based on a total offense level of 33 and a criminal history category of VI, Movant’s guidelines sentence range was calculated at 235 to 293 months. Id. The PSR also advised the court that based on a 1:1 powder cocaine to crack cocaine ratio, Movant’s total offense level would be calculated at 31. Based on a total offense level of 31 and a criminal history category of VI, Movant’s guidelines sentence range would be 188 to 235 months. ECF No. 1206 at 32. Movant was subject to a statutory minimum term of imprisonment of 120 months. ECF No. 1206-1 at 1.
The court held a re-sentencing hearing on August 28, 2013. ECF No. 1205. Movant was represented by Jonathan M. Harvey, Esquire, of the South Carolina Bar and Mark Allen Yurachek, Esquire, of the Georgia Bar. Upon motion of Movant’s counsel, and without objection by the Government, the court granted a variance and applied a 1:1 ratio. The court sentenced Movant at the bottom of the guidelines range, that is, to 188 months incarceration followed by 8 years of supervised release. ECF No. 1208. The court advised Movant that he had fourteen days to appeal his sentence. The court noted for the record, however, that Movant had waived his right to direct appeal in the written plea agreement. ECF No. 1232, 9. Movant did not file an appeal.
Movant filed the within § 2255 motion on July 24, 2014. ECF No. 1262. That same day, this court issued an order directing the Government to file a response to Movant’s §2255 motion. ECF No. 1263. On August 27, 2014, the Government filed a response in opposition to Movant’s § 2255 motion, as well as a motion for summary judgment. ECF No. 1275, 1276. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court issued an order on August 27, 2014, advising Movant of the summary judgment procedure and the possible consequences if he failed to respond adequately. ECF No. 1277. Movant filed a reply to the Government’s response on September 26, 2014. ECF No. 1284. Movant also filed a motion for final disposition on January 9, 2015, ECF No. 1295, as well as a “Motion for District Court to Move in Habeas Proceedings” on August 6, 2015, ECF No. 1334.
II. LEGAL STANDARDS
A. Summary Judgment
Pursuant to Fed.R.Civ.P. 56(a), the court shall grant summary judgment if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. The evidence presents a genuine issue of material fact if a “reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The facts and any inferences drawn from the facts should be viewed in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The party seeking summary judgment bears the initial burden of demonstrating to the district court that there is no genuine issue of material fact. C ...