United States District Court, D. South Carolina, Aiken Division
OPINION AND ORDER
Honorable Margaret B. Seymour Senior United States District
Terrance Lamar Wiggins (“Movant”), a federal
inmate proceeding pro se, filed a motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence on
September 28, 2015. ECF No. 178. The government filed a
response in opposition to Movant's motion (ECF No. 197)
and a motion for summary judgment (ECF No. 198) on March 16,
2016. On March 25, 2016, the court issued an order, pursuant
to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), advising Movant of the summary judgment procedure and
the possible consequences if he failed to respond adequately.
ECF No. 199. Movant filed a response in opposition to the
government's motion on April 26, 2016. ECF No. 202. On
December 19, 2016, the court ordered an evidentiary hearing
on Ground One. ECF No. 203. On May 25, 2017, at the
conclusion of the evidentiary hearing, the court granted the
government's motion for summary judgment on Ground One.
ECF No. 210. Movant has three remaining grounds for relief.
For the reasons stated below, the government's motion for
summary judgment on the remaining grounds is granted and
Movant's motion to vacate pursuant to § 2255 is
Factual and Procedural Background
2005 through 2012, Movant was involved in a drug conspiracy
to distribute kilogram quantities of cocaine in Barnwell
County, South Carolina, and surrounding areas of South
Carolina. Record of Transcript, ECF Nos. 167 at 53:15-20; 152
at 41:8-12. In 2005, Drug Enforcement Administration
(“DEA”) agents began investigating drug and
weapons violations in the Barnwell County area and several
cooperating witnesses detailed participating in drug
trafficking activities with Movant. ECF No. 127. During a
companion investigation into cocaine trafficking in the
counties of Barnwell, Allendale, and Hampton, South Carolina,
several cooperating witnesses described their direct
involvement with Movant in the distribution of cocaine.
Id. Based on the cooperating witnesses'
information, federal investigators obtained a search warrant
for Movant's residence in Barnwell, South Carolina. ECF
No. 167 at 30:8-11. On March 28, 2012, federal agents
executed the search warrant at Movant's residence and
found more than $458, 802.00 in cash, quantities of marijuana
and cocaine, scales, six firearms, kilogram packaging
materials, and other paraphernalia often used in the
distribution of cocaine in kilogram quantities. ECF Nos.
127-2, 129-2. Agents also searched Movant's
mother's home, to which she consented. ECF No. 127-2 at
2. In Movant's mother's home agents discovered an
additional $175, 455.00 in cash that Movant had hidden and
stored mostly throughout Movant's brother's bedroom,
his mother's closet, and the master bathroom bathtub. ECF
Nos. 127, 127-2.
April 17, 2012, the grand jury named Movant as the sole
individual in a four-count indictment charging that Movant
knowingly and intentionally did combine, conspire and agree
with others, both known and unknown to the grand jury, to
knowingly, intentionally and unlawfully possess with intent
to distribute and distribute cocaine, a Schedule II
controlled substance, said conspiracy involving 5 kilograms
or more of cocaine, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), 846 (Count One); knowingly,
intentionally, and unlawfully did possess with intent to
distribute a quantity of cocaine, a Schedule II controlled
substance, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C) (Count Two); knowingly did possess a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1) (Count Three); and, as a felon, did
knowingly possess firearms and ammunition, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2), 924(e) (Count
Four). ECF No. 20 at 1-3. On April 18, 2012, the government
filed a notice pursuant to 21 U.S.C. § 851, informing
Movant that he was subject to increased penalties based on a
previous felony drug conviction. ECF No. 26. On May 2, 2012,
Movant entered a plea of not guilty. ECF No. 46.
December 10-12, 2012, a jury heard Movant's case. ECF No.
166. On December 12, 2012, the jury found Movant guilty as to
Count One, Count Three, and Count Four. ECF No. 168 at 19-20;
ECF No. 106. The jury found Movant not guilty as to Count
7, 2013, a presentence investigation report
(“PSR”) was filed with the court. ECF No. 127.
The PSR included a revised addendum that stated the
government had no objections to the PSR. ECF No. 127-1.
Movant made the following objections: (1) to Paragraph 87,
which stated that he directed his brother or his brother
assisted him in selling illegal drugs; (2) to Paragraph 88,
which provided an enhancement for obstruction of justice
because Movant initially refused to divulge the location of
his assets; (3) to not receiving credit for acceptance of
responsibility nor for providing information to the
government; (4) to being held responsible for 200 kilograms
of cocaine; and (5) to Paragraph 86, which provided a
four-level enhancement based on level of participation. ECF
Nos. 127-1 at 1-4; 127-3. Movant moved for a variance arguing
that he cooperated with the government and accepted
responsibility. ECF No. 128 at 2.
sentencing hearing held on May 8, 2013, the court orally
denied Movant's motion for a variance below Movant's
calculated advisory guideline sentence and overruled
Movant's objections to the presentence report. ECF No.
152 at 45:13-14; ECF No. 130. Movant was sentenced to
imprisonment for life as to Count One; one hundred twenty
months concurrent as to Count Four; and sixty months
consecutive as to Count Three, as required by 18 U.S.C.
§ 924(c). Id. at 42:12-16. On May 23, 2013,
Movant filed a timely notice of appeal from the judgment and
sentence entered. ECF No. 135. The Fourth Circuit Court of
Appeals appointed John M. Ervin, III to represent Movant on
appeal. ECF No. 140. Appellate counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967),
stating there were no meritorious issues for appeal
“but question[ed] whether the district court erred in
denying [Movant's] motion for judgment of acquittal on
the § 924(c) count.” ECF No. 176 at 2. Movant was
advised of his right to file a pro se supplemental brief but
Movant failed to do so. Id. On July 15, 2014, the
United States Court of Appeals for the Fourth Circuit
affirmed the judgment of the district court. ECF No. 177-1.
September 28, 2015, Movant filed a timely motion under 28
U.S.C. § 2255 to vacate his sentence. In the memorandum
accompanying his motion, Movant asserts one ineffective
assistance of counsel claim and three substantive grounds for
relief as follows:
GROUND ONE: Defendant received ineffective assistance of
counsel during trial when counsel advised the Defendant to
submit to a proffer interview where Defendant provided made
(sic) incriminating statements that were later used against
him during trial.
GROUND TWO: Defendant's Fifth Amendment right to due
process and a fair trial were violated when the court
permitted self-incriminating statements made during an
immunity proffer to be used against the Defendant at trial.
GROUND THREE: Defendant's right to counsel was violated
when counsel labored under a conflict of interest at trial.
Defense counsel was witness to the disputed proffer interview
and therefore, should have been called as a witness for the
defense at trial in order to testify concerning the
statements made by defendant during the proffer interview.
GROUND FOUR: Defendant's sentence must be vacated because
he no longer qualifies as an armed career criminal or a
career criminal in light of the Supreme Court's decision
in Johnson v. ...