United States District Court, D. Nebraska
MEMORANDUM AND ORDER
SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE
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.
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
(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
(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).
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 ...