United States District Court, D. South Carolina, Aiken Division
OPINION AND ORDER
HONORABLE MARGARET B. SEYMOUR SENIOR UNITED STATES DISTRICT
Douglas Antonio Hammond (“Movant”) is a federal
inmate currently housed at FCI-McDowell in Welch, West
Virginia. On July 24, 2014, Movant, proceeding pro se, moved
under 28 U.S.C. § 2255 to vacate, set aside, or correct
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
August 20, 2010, Movant and fourteen co-defendants were
charged in a twenty-eight count indictment. Movant was
charged with four counts: Count One: conspiracy to distribute
five-hundred grams or more of cocaine, fifty grams or more of
cocaine base, and a quantity of marijuana, in violation of 21
U.S.C. §§ 841(b)(1)(A), § 841(b)(1)(B), and
846; Count Two: possession with intent to distribute and
distribution of five grams or more of cocaine base in
violation of 21 U.S.C. § 841(b)(1)(B); Count Three:
possession with intent to distribute and distribution of five
grams or more of cocaine base in violation of 21 U.S.C.
§ 841(b)(1)(B); Count Eight: possession with intent to
distribute and distribution of fifty grams or more of cocaine
base in violation of 21 U.S.C. § 841(b)(1)(A). ECF No.
52. On August 10, 2010, a federal grand jury returned a
superseding indictment, which raised the threshold quantity
of powder cocaine in Count One to five kilograms or more as
to all defendants, including Hammond, in violation of 21
U.S.C. § 841(b)(1)(A). ECF No. 345.
December 21, 2010, Movant pleaded guilty to Count Eight
pursuant to a written plea agreement. ECF No. 495. Prior to
sentencing, the United States Probation Office prepared a
presentence investigation report and calculated Movant's
total offense level as 33 and his criminal history category
as VI. ECF No. 656 at 29. Pursuant to the United States
Sentencing Guidelines (“Sentencing Guidelines”),
Movant's guideline range was calculated at 235 to 293
months imprisonment. Id. However, the court granted
a variance and calculated the powder cocaine and crack
cocaine amounts at ¶ 1:1 ratio. ECF No. 797.
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. Id. Movant remained subject to a
statutory minimum sentence of 240 months imprisonment.
Id. Therefore, 240 months became the bottom of his
guideline range. See U.S.S.G. § 5G1.1; ECF No.
656 at 31. The court sentenced Movant to 240 months
9, 2013, Movant filed a motion to reduce sentence pursuant to
18 U.S.C. § 3582(c)(2) based on Dorsey v. United
States, 567 U.S. 260 (2012). ECF No. 1147. The Court in
Dorsey required that the Fair Sentencing Act
(“Act”) apply retroactively to those whose crime
preceded the effective date of the Act but were sentenced
after that date. Dorsey, 567 U.S. at 275. The court
construed Movant's motion to reduce sentence as a motion
to vacate under 28 U.S.C. § 2255. ECF No. 1175. The
court granted Movant's motion and vacated his prior
sentence. Id. The United States Probation Office
again prepared a presentence investigation report. ECF No.
1206. Movant's recommended guideline range remained at
235 to 293 months based on an offense level 33 and criminal
history category VI. On August 28, 2013, the court
resentenced Movant in light of Dorsey.
resentencing, Movant was represented by Jonathan M. Harvey,
Esquire, of the South Carolina Bar and Mark Allen Yurachek,
Esquire, of the Georgia Bar (collectively,
“Counsel”). The court again granted a variance
based on the powder cocaine to crack cocaine disparity,
reducing the applicable guideline range to 188 to 235 months.
ECF No. 1205. Given the Court's holding in
Dorsey, the mandatory minimum applicable to Movant
was reduced from 240 months to 120 months. The court
sentenced Movant to 188 months incarceration followed by 8
years of supervised release with standard and special
conditions to include substance abuse treatment with testing,
vocational training, and financial or consumer credit
counseling. ECF No. 1232. Movant did not file an appeal.
filed the within § 2255 motion on July 24, 2014. ECF No.
1262. Movant raised the following two grounds for relief in
his § 2255 motion:
Ground One: Ineffective assistance of
counsel for failure to file an appeal.
Ground Two: Ineffective assistance of
counsel at sentencing for failure to argue that Movant should
have been sentenced to the new mandatory minimum.
Id. On August 27, 2014, Respondent 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 Respondent'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. On June
1, 2016, the court held an evidentiary hearing on Ground One.
ECF No. 1397. At the conclusion of the hearing, the court
granted Respondent's motion for summary judgment on
Ground One. Id. Movant has one remaining ground for
relief. The court granted Movant permission to submit
additional information as to Ground Two. Id.
November 3, 2016, Movant filed additional support for Ground
Two. ECF No. 1422. The court ordered Respondent United States
of America (“Respondent”) to respond within
fourteen days. ECF No. 1423. On December 8, 2016, Movant
filed a motion to notify the court of Respondent's
failure to “deny averred claims Rule 8(6), ” as
Respondent failed to respond to Movant's supplemental
response. ECF No. 1425. On May 8, 2017, the court again
ordered Respondent to respond to Movant's supplemental
response. ECF No. 1435. Respondent responded and moved for
summary judgment on June 1, 2017. ECF Nos. 1440, 1441. The
court again issued an order pursuant to Roseboro
informing Movant of the summary judgment procedures. ECF Nos.
1442, 1447. Movant informed the court that he had not
received Respondent's motion for summary judgment, ECF
No. 1449, and the court again ordered Respondent serve
Movant, ECF No. 1452. On August 14, 2017, Movant responded to
the government's motion for summary judgment. ECF No.
Strickland v. Washington, 466 U.S. 688 (1984),
ineffective assistance of counsel has two elements. First,
the movant must show that counsel's performance was
deficient. Strickland, 466 U.S. at 687. Second, the
movant “must show ...