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United States v. Hammond

United States District Court, D. Nebraska

October 31, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRY G. HAMMOND, Defendant.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Defendant's Motion for Second or Successive 28 U.S.C. § 2255, ECF No. 74. Although second or successive motions under § 2255 must be certified by a panel of the appropriate court of appeals, see § 2255(h), the Defendant's first motion under § 2255 was dismissed without prejudice, see ECF No. 72, and the Court construes his pending Motion as an initial motion under § 2255.

         Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires initial review of a § 2255 motion, and describes the initial review process:

The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

Section 2255(f) requires all § 2255 motions to be filed within one year from:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

         BACKGROUND

         The Defendant Terry G. Hammond entered a plea of guilty to Count I of the Indictment, charging him with distribution or possession with intent to distribute at least 500 grams of methamphetamine, in violation of 21 U.S.C. § 846. On April 2, 2008, Judgment was entered, sentencing Hammond to a term of 262 months incarceration, and five years of supervised release. He was determined to be a career offender under U.S.S.G. § 4B1.1, based on prior convictions for drug trafficking and attempted second degree sexual assault. Although his counsel objected to the career offender classification, the Court overruled the objection, noting:

In defining a crime of violence, U.S.S.G. § 4B1.2(a)(1) includes an offense under state law that includes an element of “use, attempted use, or threatened use of physical force against the person of another.” Crimes of violence include forcible sex offenses. U.S.S.G. § 4B1.2 cmt. n.1. In determining whether a specific prior offenses meets the definition of crime of violence, the “the offense of conviction (i.e., the conduct of which the defendant was convicted) is the focus of the inquiry.” Id. n.3. The version of Neb. Rev. Stat. § 28-320 in effect at the time of the Defendant's 1996 conviction stated that “[s]exual assault shall be in the second ...

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