United States District Court, D. Connecticut
RULING RE: MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE PURSUANT TO 28 U.S.C. § 2255 (DOC. NO.
C. Hall United States District Judge.
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.
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).
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
reasons set forth below, Hammond's Motion to Vacate is
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).
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).
pending Motion to Vacate, supplemented by Hammond's
Motion to Amend, Hammond requests an evidentiary hearing
pursuant to section 2255 on nine grounds. See Mot.
to Vacate at 13.
Section 2255 Petition
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)).
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).
Ineffective Assistance of Counsel
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).
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.
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.
Ground Two: Definition of Ammunition
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.
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.
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 ...