TIMOTHY M. CAIN, District Judge.
This matter is before the court on John Forrest Ham's ("Ham's") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 44) and the Government's Motion for Summary Judgment (ECF No. 61). For the reasons set forth below, the Government's motion is granted.
On May 12, 2010, Ham pled guilty to possession of a firearm by a convicted felon, in violation of 21 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e) (Count One); carjacking, in violation of 18 § U.S.C. 2119(1) (Count Two); and possession of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924 (c)(1) (Count Three). On September 10, 2010, Ham was sentenced by United States District Judge Henry F. Floyd to a total of 319 month: 235 months for Count One, 180 months for Count Two, to run concurrently, and 84 months for Count Three, to run consecutively. Ham appealed and on July 12, 2011, the Fourth Circuit Court of Appeals affirmed Ham's convictions and sentences. Thereafter, Ham filed the instant § 2255 motion. In response, the Government filed a Motion for Summary Judgment.
To obtain relief on a motion under 28 U.S.C. § 2255, the movant must prove that one of the following occurred: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such a sentence;
(3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Thus, a movant must establish either an error of "constitutional or jurisdictional magnitude" or an error which "could not have been raised on direct appeal, and if condoned, would result in a complete miscarriage of justice." Hill v. United States, 368 U.S. 424, 428 (1962). However, if a movant does not raise a claim on direct review, he may not raise it for the first time on collateral review unless the movant can show (1) cause and actual prejudice or (2) actual innocence. Bousley v. United States, 523 U.S. 614, 621-22, (1998). If the movant cannot satisfy the cause and prejudice analysis, movant may be excused from default if the case falls "within `the narrow class of cases . . . implicating a fundamental miscarriage of justice.'" Schlup v. Delo, 513 U.S. 298, 314-15 (1995). To do so the movant must establish through new evidence "that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Id. at 327.
In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that his counsel's performance fell below an objective standard of reasonableness, and (2) that his counsel's deficiencies prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect to the first prong, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. With respect to the second prong, a petitioner must demonstrate a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Under § 2255(b), a movant is to be granted an evidentiary hearing on his motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Summary dismissal of § 2255 allegations is "warranted only if a habeas petitioner's allegations when viewed against the record of the plea hearing are palpably incredible or patently frivolous or false." United States v. White, 366 F.3d 291, 297 (4th Cir.2004) (quoting Blackledqe v. Allison, 431 U.S. 63, 76 (1977)) (internal quotation marks omitted).
In his § 2255 motion, Ham raises thirteen grounds for relief based upon allegations of ineffective assistance of counsel.
Ham alleges that defense counsel was ineffective because counsel never went over the pre-sentence report ("PSR") with him and did not file any objections to the PSR. Ham's general allegations against his counsel do not meet the Strickland standard to show either deficient performance by counsel or prejudice. Further, during Ham's sentencing hearing, upon inquiry from the presiding judge, Ham stated that he had reviewed the PSR with his attorney and had no questions or concerns concerning the PSR. (ECF No. 38 at 2). Accordingly, this ground is without merit.
Ham claims that defense counsel was ineffective for failing to argue that Ham's burglary conviction was not a proper predicate under the Armed Career Criminal Act ("ACCA"). Specifically, Ham contends that the PSR stated Ham had committed a prior burglary offense and this prior offense was for a third degree burglary of a building which he alleges is not a proper predicate under the ACCA.
A defendant is considered as an armed career criminal ("ACC") if he has three prior violent felony and/or serious drug convictions. 18 U.S.C. § 924(e). The ACCA defines "violent felony" as follows:
18 U.S.C. § 924 (e)(2)(B). Burglary is considered a violent felony under 18 U.S.C. § 924(e)(2)(b)(ii). However, burglary is not defined in the ACCA. Under South Carolina law, a person is guilty of third degree burglary "if the person enters a building without consent and with intent to commit a crime therein." S.C. Code Ann. § 16-11-313.
To determine whether an offense under state law falls within the definition of a violent felony, generally this court uses a categorical approach, which "requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense." See Taylor v. United States, 495 U.S. 575, 598-602 (1990). While a court normally may look only to the fact of a conviction and the statutory definition, because some states broadly define burglary to include places other than buildings, the categorical approach may be modified to "permit the sentencing court to go beyond the mere fact of conviction." Taylor, 495 U.S. at 602. See also Shepard v. United States, 544 U.S. 13, 16-17 (2005).
Under the modified categorical approach set forth in Taylor, an offense will constitute burglary if the jury was required "to find all the elements of generic burglary in order to convict the defendant," and "the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building," so "the jury necessarily has to find an entry of a building to convict." Taylor, 495 U.S. 602.
Ham's first qualifying predicate offense is his state conviction for burglary in the third degree. According to paragraph 20 of the PSR, Ham's state burglary conviction was committed when Ham forced open the front door of Willie Lynn's residence and entered the residence. (ECF No. 22-PSR at ¶ 20). Because the PSR reveals that Ham's conviction for burglary in the third degree involved his entry into a residence with force, this offense constitutes a generic burglary for purposes of the ACCA. See Cade v. United States, 2012 WL 3116021 (D.S.C. 2012). In addition, because S.C. Code Ann. § 16-11-313 requires an unlawful entry into a building with the separate intent to commit a crime, "it corresponds `in substance' to Taylor's generic definition of burglary." United States v. Bonilla, 687 F.3d 188, 193 (4th Cir. 2012). Therefore, there was no basis for Ham's defense counsel to object, and Ham is unable to demonstrate prejudice as a result of his counsel's failure to object. Accordingly, this claim is without merit.
Ham alleges that his defense counsel was ineffective for failing to object to a ten-year-old assault and battery of high and aggravated nature ("ABHAN") conviction being considered a predicate offense for his career offender status.
The three-prong test for career offender status is set forth in United States Sentencing Guidelines § 4B1.1:
Pursuant to the PSR, Ham was convicted of ABHAN and sentenced to five years probation on February 10, 2000. However, on July 25, 2003, Ham's probation was revoked and a three year sentence was imposed. Ham's sentence of imprisonment on the ABHAN conviction thus exceeded thirteen months, and correctly was treated as a predicate offense for career offender status. U.S.S.G. § 4A1.1(a). Therefore, counsel was not deficient for failing to object, and Ham is unable to demonstrate prejudice as a result of his counsel's failure to object. Accordingly, this claim is without merit.
Ham contends defense counsel was ineffective of failing to object to miscalculations in the PSR. As the PSR indicates, on January 7, 2002, Ham was sentenced for the two convictions listed in paragraphs 22 and 23. Ham contends that he was incorrectly given two points in the PSR for each of these offenses when there was no intervening arrest.
Here, while Ham was sentenced on the same day for the convictions listed in paragraphs 22 and 23, the second part of the rule is only applicable if there is no intervening arrest. As the PSR indicates, Ham committed the charge set forth in paragraph 22 on March 23, 2000, and he was arrested on this charge on April 27, 2000. Ham committed the offense set forth in paragraph 23 on August 27, 2001, and he was arrested for that crime on the same date — August 27, 2001. As he was arrested for the first offense prior to committing the second offense, there was an intervening arrest, and Ham's prior sentences should be counted separately. Therefore, because the PSR properly counted them as separate convictions for the purpose of determining Ham's career offender status, defense counsel was not deficient for failing to object, and Ham is unable to demonstrate prejudice as a result of counsel's failure to object. Accordingly, this claim is without merit.
Ham argues that defense counsel was ineffective for failing to object to the criminal history calculation in his PSR. In this ground, he merely re-states his arguments raised in Grounds Three and Four. Accordingly, this ground is without merit.
Ham argues that defense counsel was ineffective for failing to object to a misstatement in the PSR that he was on probation when the instant offense was committed. Ham contends that at the time of the current offense, he was not on probation. Specifically, he states his probation expired in December 2008. According to the PSR, Ham was released from the South Carolina Department of Corrections to probation on June 29, 2007, and that Ham committed the current offense on September 17, 2009, and his probation was revoked on November 13, 2009. (ECF No. 22-PSR at ¶ 24.)
Here, Ham has come forward only with the barest of allegations, all of which are unsupported. In regard to this ground, he has not produced any evidence that defense counsel was deficient in his representation, let alone shown that he was prejudiced. Unsupported, conclusory allegations do not entitle a habeas petitioner to an evidentiary hearing. See Nickerson v. Lee, 971 F.2d 1125, 1136 (4
Ham contends that his defense counsel was ineffective for failing to inform him that if he did not know there was a person in the vehicle, he did not have the "mens rea," or intent, required for kidnapping. Therefore, he contends that the four-level enhancement provided for in paragraph 46 of the PSR is incorrect.
According to U.S.S.G. § 2B3.1(b)(4)(A), "If any person was abducted to facilitate commission of the offense or to facilitate escape, increase by 4 levels; or (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape, increase by 2 levels." At Ham's guilty plea, the Government set forth its rendition of the facts:
(ECF No. 37-Guilty Plea Tr. at 31-32).
The PSR provided that:
(ECF No. 22-PSR at 5, 12).
Ham contends that he did not know the passenger was on the bus and, therefore, did not have the intent to abduct the passenger in the bus. The court need not determine whether intent must be shown for the application of this enhancement because even if this Court were to conclude that Ham's sentence was inappropriately enhanced as to Count Two and counsel was deficient for failing to object, given Ham's career offender status, Ham cannot show prejudice. Because Ham's offense level of 28 was lower than the offense level of 38 under the career offender provision, the higher level applied and the court relied on Ham's career offender status in sentencing him. Non-prejudicial sentencing errors do not warrant § 2255 relief. See United States v. White, 238 F.3d 537, 542 (4th Cir. 2001). See also United States v. Abdel-Aziz, 67 Fed.Appx. 805 (4th Cir. 2003)(Alleged error with respect to verbal sentence of imprisonment with regard to particular count was harmless, since defendant did not contest validity of adjudication as to that count and because 60 month sentence on that count was to run concurrently with 100 month sentence imposed on other counts). Accordingly, this ground is without merit.
Ham alleges that his defense counsel was ineffective for failing to object to Ham being classified as an armed career criminal and/or a career offender. First, in this ground, Ham simply reasserts generally his previous arguments concerning his criminal history and his classification as a ACC. Moreover, Ham's allegations are general and conclusory, and because he has not alleged any specific deficient performance and prejudice, do not meet the Strickland standard. Accordingly, this ground is without merit.
Ham contends his defense counsel was ineffective for failing to object to the mandatory minimum sentence of 84 months that he received on Count Three for use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Subsection 924 (c) provides for punishment of a violation of § 924 and states that "except to the extent that a greater minimum sentence provided by this subsection or any other provision of law." Specifically, Ham contends that the "except" clause nullifies § 924 (c)(1)(A)'s mandatory minimum sentence requirements because his Count One conviction carries a "greater minimum sentence," fifteen years, than the seven-year mandatory minimum sentence for his Count Three or § 924 (c) conviction.
Ham's claim is foreclosed by Abbott v. United States, ___ U.S. ___, 131 S.Ct. 18, 23, 178 L.Ed.2d 348 (2010)(holding that a defendant who is subject to a mandatory consecutive sentence under § 924 (c) is not spared from that sentence by virtue of receiving a higher mandatory sentence on a different conviction). See also United States v. Studfin, 240 F.3d 415 (4th Cir. 2001) (holding that the "except" clause applies only to provisions applying a greater minimum sentence to the § 924 (c) violation itself). Therefore, based on the record, defense counsel was not deficient for not objecting to the mandatory sentence and Ham is unable to demonstrate any prejudice. Accordingly, this claim is without merit.
Ham contends his defense counsel was ineffective for failing to object to paragraph 58 of the PSR "because of grounds # 2 thru # 9 that [he has] presented to [defense counsel] and [is] now presenting to this Court." (ECF NO. 44-Habeas Pet. at 11). In this ground, Ham is simply reasserting his previous arguments that his resulting guidelines range was incorrect. Accordingly, this ground is without merit.
Ham contends his defense counsel was ineffective for failing to raise certain issues on appeal after sentencing and respond to his inquiries about issues Ham asked defense counsel to raise on appeal. Ham's allegations against his counsel are general and, because he has not alleged any specific deficient performance and prejudice, do not meet the Strickland standard. Accordingly, this ground is without merit.
Ham contends his defense counsel was ineffective for failing to raise his mental health and raise this issue to the court. He contends he raised his mental issues to defense counsel prior to his sentencing. Morever, at his guilty plea, when the court asked Ham whether he has "ever been treated for abuse of alcohol, drugs or mental illness" and Ham indicated that he was only treated for drug related issues 15 years ago. (ECF No. 37-Guilty Plea Tr. at 7-8). Ham presents no evidence to support his claim. Accordingly, this claim is without merit.
Ham contends his defense counsel was ineffective because he pressured him into pleading guilty by guaranteeing him that his federal prison sentence wold run concurrently with his state prison sentences.
The Bureau of Prisons ("BOP") apparently concluded that Ham could not serve his state and federal sentences concurrently while in a federal facility because the BOP determined that Ham was not in federal custody when he was sentenced in federal court.
The court also notes that during Ham's sentencing hearing, the court informed Ham that the sentence actually imposed might be different from any estimate his counsel or anyone else may have given him (ECF NO. 38 at 41). The court was also informed that there was no plea agreement in the case. Id.
Base on the record before the court, defense counsel was not deficient in advising Ham to pled guilty. Defense counsel attempted to have the sentences run concurrently and reasonably believed Ham was sentenced while in federal custody. Moreover, defense counsel also attempted to address the situation when later faced with the BOP's determination that Ham had not been sentenced while in federal custody. Ham's failure to withdraw his appeal and be re-sentenced was his decision and does not render counsel`s performance deficient. Accordingly, this claim is without merit.
For the foregoing reasons, the government's Summary Judgment Motion is granted (ECF No. 61) is
A certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A prisoner satisfies this standard by demonstrating that reasonable jurists would find both that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Rose v. Lee, 252 F.3d 676,683 (4th Cir. 2001). In the instant matter, the court finds that Petitioner has failed to make "a substantial showing of the denial of a constitutional right." Accordingly, the court declines to issue a certificate of appealability.
Id. at 1273 (citations omitted). The Johnson opinion, however, is inapplicable to this case. In Johnson, the Supreme Court addressed a Florida state conviction for battery, not burglary, and the Court specifically noted that burglary was a predicate offense under the ACCA because burglary often leads to violence.
