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Hammond v. United States

United States District Court, D. Connecticut

May 24, 2018

TYRON HAMMOND, Petitioner,


          Janet C. Hall United States District Judge.


         The petitioner, Tyron Hammond (“Hammond”), filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to section 2255 of title 28 of the United States Code on April 20, 2016. See Mot. to Vacate, Set Aside or Correct Sentence (“Mot. to Vacate”) (Doc. No. 1). On April 29, 2016, Hammond filed a Motion to Amend/Correct his Petition by adding two further grounds for relief. See Motion to Amend/Correct Mot. to Vacate, Set Aside or Correct Sentence (“Mot. to Amend”) (Doc. No. 4). The respondent, the United States of America (“the government”), submitted a Response to Hammond's Petition and his Motion to Amend on June 20, 2016 (“Gov't's Resp.”) (Doc. No. 7) and a Corrected Response on June 22, 2016 (Gov't's Corrected Resp.”) (Doc. No. 8). The court later granted Hammond's Motion to Amend. See Order (Doc. No. 17).

         On June 25, 2016, Attorney Charles Willson filed an appearance on behalf of Hammond to pursue arguments arising out of Johnson v. United States, 135 S.Ct. 2552 (2015). (Doc. Nos. 9, 12). After supplemental briefing regarding Hammond's Johnson claim (Doc. Nos. 15, 16, 18), Hammond withdrew his Johnson claim on May 15, 2017, following the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017). See Resp. to OTSC (Doc. No. 22). Attorney Willson terminated his representation of Hammond following the withdrawal of Hammond's Johnson claim. (Doc. No. 23).

         The court set an initial deadline of July 17, 2017, for Hammond to file a Reply brief (Doc. No. 23). When that deadline passed without Hammond having submitted a Reply, the court extended the deadline to September 1, 2017. (Doc. No. 25). On October 13, 2017, the court issued an Order to Show Cause stating that it would rule on Hammond's Petition on the papers submitted to date if Hammond did not submit his Reply by November 3, 2017. (Doc. No. 26). Hammond never filed a Reply.

         For the reasons set forth below, Hammond's Motion to Vacate is DENIED.


         Hammond was indicted on February 26, 2013, for unlawful possession of ammunition by a convicted felon, in violation of sections 922(g)(1) and 924(a)(2) of title 18 of the United States Code. See U.S. v. Hammond, No. 3:13-CR-43 (JCH) (“Hammond Criminal Docket”), Indictment (Doc. No. 1). Hammond was initially represented by Attorney Robert Golger. See Hammond Criminal Docket, Att'y Appearance (Doc. No. 6). Attorney Golger withdrew on May 23, 2013, see Hammond Criminal Docket, First Mot. to Withdraw (Doc. No. 37), and was replaced by Attorney J. Patten Brown, see Hammond Criminal Docket, Appointment of Att'y (Doc. No. 39).

         Trial began on August 27, 2013, and the jury returned a guilty verdict the following day. See Hammond Criminal Docket, Jury Verdict (Doc. No. 82). On December 9, 2013, this court sentenced Hammond to 108 months' imprisonment and three years of supervised release. See Hammond Criminal Docket, Judgment (Doc. No. 103). Hammond appealed his conviction and sentence, and the Second Circuit denied his appeal on January 23, 2015. See U.S. v. Hammond, 590 Fed.Appx. 107 (2d Cir. 2015).

         In the pending Motion to Vacate, supplemented by Hammond's Motion to Amend, Hammond requests an evidentiary hearing pursuant to section 2255 on nine grounds.[1] See Mot. to Vacate at 13.


         A. Section 2255 Petition

         “Because collateral challenges are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack.” Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010) (internal quotation marks omitted). Section 2255 of title 28 of the United States Code permits a federal prisoner to move to vacate, set aside, or correct his sentence “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a) (2016). Therefore, relief is available “under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law that constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)).

         The petitioner bears the burden of proving he is entitled to relief by a preponderance of the evidence. See Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011). In deciding a section 2255 motion, the court must hold a hearing, “unless the motion and the files and records of the case conclusively show that the plaintiff is entitled to no relief.” 28 U.S.C. § 2255(b). However, a petitioner is not automatically entitled to a hearing, and no hearing is required where a petitioner's “allegations are ‘vague, conclusory, or palpably incredible.'” Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013) (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). To determine whether a prisoner is entitled to an evidentiary hearing on the motion, the court looks “primarily to the affidavit or other evidence proffered in support of the application in order to determine whether, if the evidence should be offered at a hearing, it would be admissible proof entitling the petitioner to relief.” LoCascio v. United States, 395 F.3d 51, 57 (2d Cir.2005) (quoting Dalli v. United States, 491 F.2d 758, 760 (2d Cir.1974)). “The petitioner must set forth specific facts which he is in a position to establish by competent evidence.” Id. (quoting Dalli, 491 F.2d at 761).

         B. Ineffective Assistance of Counsel

         A petitioner claiming ineffective assistance of counsel must satisfy a two-prong test under Strickland v. Washington, 466 U.S. 668, 687-88 (1984). First, he must demonstrate that his counsel's performance “fell below an objective standard of reasonableness.” Id. at 688; see also United States v. Abad, 514 F.3d 271, 275 (2d Cir. 2008). Second, he must show that he was actually prejudiced as a result of counsel's deficient performance. See Strickland, 466 U.S. at 687, 692; see also Harrington v. United States, 689 F.3d 124, 129 (2d Cir. 2012).

         Under the first prong, the petitioner “bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); see also Gjuraj v. United States, No. 3:12-CV-1686, 2013 WL 3540986, at *4 (D. Conn. July 10, 2013). The Second Circuit has described the petitioner's burden as “a heavy one because, at the first step of the analysis, [a court] ‘must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'” Harrington, 689 F.3d at 129 (quoting Raysor v. United States, 647 F.3d 491, 495 (2d Cir. 2011)). “The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential.” Kimmelman, 477 U.S. at 381.

         Under the second prong, to show prejudice, a petitioner must establish “a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694; see also Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003). Strickland defines a reasonable probability as “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. As such, prejudice “requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687.


         A. Ground Two: Definition of Ammunition[2]

         Hammond claims that the jury was required to find that the “ammunition the movant is being accused of possessing was capable to expel a projectile, (the bullet), by the action of an explosive, (the gunpowder), ” but the court did not instruct the jury on this element and there was no evidence that the bullets contained gunpowder that would allow them to expel a projectile by the action of an explosive. See Mot. to Vacate at 15-16. Due to the lack of a complete definition of ammunition in the Indictment and jury instructions, Hammond argues, the court did not have jurisdiction over his case. See id. at 14-16. Hammond argues that, because a jurisdictional issue is never waived, he is not barred from seeking reversal of his conviction on this ground. See Id. at 15. In addition, he argues, under Alleyne v. United States, 570 U.S. 99 (2013), ammunition was an element that increased the penalty he faced and had to be submitted to the jury. Finally, Hammond argues, Attorney Brown, who served as his trial and appellate counsel, was ineffective for failing to challenge the Indictment and conviction on this basis. See id. at 16.

         The government responds that Hammond is procedurally barred from raising his claim because he did not raise it on direct appeal. See Gov't's Corrected Resp. at 20- 21. The government also argues that, even assuming Alleyne applied to Hammond's claim, the Second Circuit has held that Alleyne may not be applied retroactively on collateral review. See id. at 21. Additionally, the government argues that Hammond's trial and appellate counsel was not ineffective because the count of unlawful possession of ammunition which traveled in interstate commerce was properly charged and proven to the jury. See id.

         The court concludes that Hammond procedurally defaulted his claim that there was insufficient evidence to support his conviction for unlawfully possessing ammunition by failing to raise it on direct appeal. See Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007). Hammond's characterization of the elements of the offense as “jurisdictional” does not allow him to circumvent the procedural default bar. See id. In addition, even assuming Alleyne applied to Hammond's claim, the Second Circuit ...

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