United States District Court, D. Connecticut
RULING AND ORDER
N. CHATIGNY UNITED STATES DISTRICT JUDGE.
Gavin Hammett, proceeding pro se, moves pursuant to
28 U.S.C. § 2255 for relief from his conviction and
sentence. He claims that his trial and appellate counsel were
constitutionally ineffective and raises various issues
related to his plea agreement, guilty plea, and sentencing.
The Government responds that his claims should be dismissed
because they are procedurally defaulted and lack merit. I
agree and therefore deny the petition.
was the lead defendant in a large drug conspiracy case.
See generally United States v. Hammett, 3:10-cr-128
(RNC). He pleaded guilty to conspiracy to possess with intent
to distribute 500 grams or more of cocaine, in violation of
21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B). Prior
to his plea, the Government filed a second-offender
information, pursuant to 21 U.S.C. § 851, which
increased the maximum statutory penalty to life imprisonment
and the mandatory-minimum term of imprisonment to ten years.
See § 851 Information, id. (ECF No.
plea agreement addressed the parties' positions regarding
the Sentencing Guidelines. See Plea Agreement,
id. (ECF No. 310). As summarized in the agreement,
the Government took the position that a range 168-210 months
of imprisonment applied based on a total offense level of 31
(reflecting agreed upon drug quantities of 5 kilograms of
cocaine and 2 kilograms of crack) in criminal history
category (“CHC”) V. Hammett took the position
that a range of 121-151 months applied based on a total
offense level of 29 (derived from using a 1:1
crack-to-powder-cocaine ratio) in CHC IV. The parties
reserved their rights to argue whether the defendant
qualified as a career offender pursuant to U.S.S.G. §
4B1.1. The Government's position was that, if the career
offender enhancement was found to apply, Hammett would be in
CHC VI, with a total offense level of 34, yielding a range of
262-327 months. Hammett's position was that “the
Career Offender Guidelines are not deserving of judicial
deference in general and should not be followed in this
to Hammett's sentencing, the Probation Office prepared a
Presentence Investigation Report (“PSR”). An
addendum to the PSR stated that Hammett qualified as a career
offender, increasing the CHC from V to VI. See PSR
Add., id. (ECF No. 622). The addendum also stated
that he was subject to a four-level adjustment as the leader
or organizer of the conspiracy, making his total offense
level 35. Based on these findings, the range was 292-365
sentencing took place over two days. See Sentencing
Tr. Vol. I-II, id. (ECF Nos. 823, 824). On the first
day, I adopted a range of 292 to 365 months, as calculated in
the addendum to the PSR. Neither party objected to this
calculation. However, Hammett requested a substantially
lesser sentence of 180 months, arguing that the Court should
apply a 1:1 crack-to-powder -cocaine ratio, decline to
sentence him as a career offender, and depart from CHC VI to
CHC IV. The Government argued that the career offender
guideline should be applied. However, it sought a sentence
within the range of 262-327 months, the career-offender range
it contemplated at the time of the plea agreement. The
sentencing hearing was continued to give the parties an
opportunity to obtain additional information about two of
Hammett's prior convictions.
the sentencing hearing resumed, I stated that the career
offender guideline would not be used because Hammett's
offense conduct was partly attributable to his own drug use
and he had no significant history of violence. I explained
that a range of 210 to 262 months would be used, reflecting a
1:1 crack-to-powder-cocaine ratio, a CHC of V, and a
four-level adjustment for Hammett's role in the offense.
I then sentenced Hammett to 240 months' imprisonment,
finding that sentence sufficient but not harsher than
necessary considering all the factors in 18 U.S.C. §
appealed his sentence, arguing that it was substantively
unreasonable. United States v. Hammett, 555
Fed.Appx. 108 (Feb. 20, 2014). The Court of Appeals affirmed.
Id. at 110. The Court stated that although
“240 months of incarceration is a harsh sentence,
” it is not “unsupportable as a matter of
law” in light of the serious offense conduct and
Hammett's history and characteristics. The Supreme Court
denied Hammett's petition for certiorari. Hammett v.
United States, 135 S.Ct. 121 (2014).
obtain relief under § 2255, a petitioner must show that
his “sentence was imposed in violation of the
Constitution or laws of the United States.” 28 U.S.C.
§ 2255. A claim is cognizable under § 2255 if it
involves a “fundamental defect which inherently results
in a complete miscarriage of justice.” Davis v.
Hill, 417 U.S. 333, 346 (1974) (quoting Hill v.
United States, 368 U.S. 424, 428 (1962)). Pursuant to
the “mandate rule, ” a § 2255 motion
generally does not provide an opportunity to relitigate
issues that were raised and considered on direct appeal.
Yick Man Mui v. United States, 614 F.3d 50, 53 (2d
Cir. 2010). In addition, if a petitioner failed to raise a
claim that was ripe for review on direct appeal, the claim is
procedurally barred unless he “establishes (1) cause
for the procedural default and ensuing prejudice or (2)
actual innocence.” United States v. Thorn, 659
F.3d 227, 231 (2d Cir. 2011).
argues that his guilty plea is invalid because his plea
agreement was based on a mutual mistake regarding the
applicable guideline range. He also argues that his trial
counsel provided ineffective assistance in connection with
his plea agreement, guilty plea, and sentencing. None of
these claims was presented on direct appeal. Hammett argues
that he can show cause and prejudice to excuse his procedural
default because his trial and appellate counsel were
constitutionally ineffective. He is correct that ineffective
assistance of appellate counsel may excuse a procedural
default. See United States v. Perez, 129 F.3d 255,
261 (2d Cir. 1997). In addition, claims of ineffective
assistance of trial counsel may be brought in a § 2255
proceeding “whether or not the petitioner could have
raised the claim on direct appeal.” Massaro v.
United States, 538 U.S. 500, 504 (2003). However,
Hammett's claims fail because he has not shown that his
trial or appellate counsel provided ineffective assistance.
obtain relief based on a claim of ineffective assistance of
counsel, Hammett must demonstrate that (1) his counsel's
performance fell below an objective standard of
reasonableness and (2) he suffered prejudice as a result.
Strickland v. Washington, 466 U.S. 668, 694 (1984).
This is a “highly demanding” and
“rigorous” standard. Bennett v. United
States, 663 F.3d 71, 84-85 (2d Cir. 2011). To show that
his counsel's performance was constitutionally deficient,
Hammett must overcome the “strong presumption”
that his counsel's conduct was “within the wide
range of professionally competent assistance.”
Id. at 689. To show prejudice, he ...