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Wiggins v. United States

United States District Court, D. South Carolina, Aiken Division

May 8, 2017

Terrance Lamar Wiggins a/k/a T-Wig a/k/a Barnwell, Movant,
United States of America, Respondent.


          Honorable Margaret B. Seymour Senior United States District Court Judge

         Movant 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 denied.

         I. Factual and Procedural Background

         From 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.

         On 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.

         From 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 Two. Id.

         On May 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.

         At the 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.

         On 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. ...

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