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Hammoud v. United States

United States District Court, D. Maryland

June 16, 2016

HASSAN HAMMOUD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. RDB-14-0017

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge

         On May 16, 2014, Petitioner Hassan Hammoud (“Petitioner” or “Mr. Hammoud”) pled guilty to conspiracy to use fire to commit a federal felony, in violation of 18 U.S.C. § 844(m).[1] Thereafter, this Court sentenced Petitioner to a term of imprisonment of sixty-three months. Judgment, ECF No. 35. Petitioner noted an appeal (ECF No. 38) to the United States Court of Appeals for the Fourth Circuit on October 30, 2014, despite the waiver of his right to appeal in the plea agreement. USA v. Hammoud, 613 F. App’x 216 (4th Cir. 2015). On appeal, Mr. Hammoud’s counsel submitted a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he explained that “there are no meritorious grounds for appeal, but set[] forth arguments challenging the validity of the plea and the reasonableness of the sentence.” Id. at 216. The Fourth Circuit granted the Government’s Motion to Dismiss and thus dismissed the appeal on June 4, 2015. Id. at 217. Petitioner did not file a petition for certiorari with the United States Supreme Court. Mot. to Vacate, 2, ECF No. 52.

         Mr. Hammoud timely filed the pending Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 52). He appears to request only that this Court “correct” his sentence, and not that it be vacated. Mem. in Support of Mot. to Vacate, 2, ECF No. 52-1. Indeed, he does not claim innocence, but rather repeatedly apologizes to this Court for his “shamful [sic] acts.” Id. Also pending are Petitioner’s Motion for Default Judgment (ECF No. 56) and Emergency Motion to Appoint Counsel (ECF No. 58). The parties’ submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, Petitioner Hassan Hammoud’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 52) is DENIED; Petitioner’s Motion for Default Judgment (ECF No. 56) is DENIED;[2] and Petitioner’s Emergency Motion to Appoint Counsel (ECF No. 58) is DENIED.[3] In sum, Petitioner fails to raise any cognizable ground to support the “correction” of his sentence.

         BACKGROUND

         On January 14, 2014, a federal grand jury indicted Petitioner on charges of (1) conspiracy to use fire to commit a federal felony, in violation of 18 U.S.C. § 844(m); and (2) use of fire to commit a federal felony, in violation of 18 U.S.C. § 844(h)(1). See Indictment, ECF No. 1. The charges stemmed from a conspiracy between Mr. Hammoud and Saleh Fakhoury (“Fakhoury”) to destroy Fakhoury’s residence through arson, and then collect the insurance proceeds. Id. at 3. Petitioner agreed to help Fakhoury in exchange for a portion of the insurance proceeds. Gov’t Resp. in Opp’n, 1-2, ECF No. 57.

         After a fire on March 12 or 13, 2009 completely destroyed his residence, [4] Fakhoury submitted a claim to Great Northern Insurance Company (“Great Northern”) for $2, 233, 775.62 for the home and $921, 422.22 for its contents. Id.; Indictment at 3. Great Northern denied the claim, but paid $828, 773 to the mortgagor of Fakhoury’s residence, Chase Manhattan Bank. Indictment at 3-4. Although it is unclear whether Petitioner actually set the fire himself, Fakhoury purportedly paid him $20, 000 in compensation for his services. Gov’t Resp. in Opp’n at 2.

         Petitioner pled guilty to conspiracy to use fire to commit a federal felony, in violation of 18 U.S.C. § 844(m) on May 16, 2014. See Plea Agreement, ECF No. 28. As part of the agreement, Petitioner waived his right to appeal. Id. Despite that waiver, Mr. Hammoud appealed his conviction and sentence to the United States Court of Appeals for the Fourth Circuit. See USA v. Hammoud, 613 F. App’x 216 (4th Cir. 2015). Pursuant to Anders v. California, 386 U.S. 738, Petitioner’s counsel challenged only the validity of the plea and the reasonableness of the sentence because Petitioner had no meritorious grounds for appeal. Id. at 216. Petitioner filed his own supplemental brief pro se, asserting his actual innocence and the ineffective assistance of counsel. Id. The Government then moved to dismiss on the sole ground that Petitioner explicitly waived his right to appeal in his plea agreement. Id. The Fourth Circuit agreed, holding that the record clearly reflected that Mr. Hammoud’s waiver was knowing and intelligent. Id. at 4. Moreover, any claims of ineffective assistance of counsel were properly reserved for collateral review. Id. (citing United States v. Galloway, 749 F.3d 238, 241 (4th Cir.), cert. denied, 135 S.Ct. 215 (2015) (explaining that an attorney’s ineffectiveness must be apparent on the face of the record to be cognizable on direct appeal)).

         Mr. Hammoud timely filed the pending Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 52). Petitioner seeks four forms of relief: (1) transfer to a different Bureau of Prisons facility; (2) psychological counseling; (3) reduction of his sentence; and (4) the appointment of counsel. Mem. in Support of Mot. to Vacate at 12. Unlike his appeal, he does not assert his innocence. Rather, he requests only the “correction” of his sentence. Id. at 1-2.

         STANDARD OF REVIEW

         Documents filed pro se are “liberally construed” and are “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)(citation omitted). Under 28 U.S.C. § 2255, a prisoner in custody may seek to vacate, set aside or correct his sentence where (1) “the sentence was imposed in violation of the Constitution or laws of the United States, ” (2) the court lacked “jurisdiction to impose the sentence, . . . [(3)] the sentence was in excess of the maximum authorized by law, or [(4) the sentence] is otherwise subject to a collateral attack.” 28 U.S.C. § 2255. “[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.’” United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

         DISCUSSION

         As noted supra, Petitioner moves only to “correct” his sentence, and not to vacate. In so doing, he seeks four specific forms of relief: (1) transfer to a different Bureau of Prisons facility; (2) psychological counseling while incarcerated; (3) reduction of his sentence; and (4) the appointment of counsel. Mem. in Support of Mot. to Vacate at 12. As the first and second forms of relief each concern Bureau of Prisons-related issues, they will be addressed together. Next, this Court will consider the merits of his request to reduce his sentence. Finally, this Court will turn to the appointment of counsel.

         I. Bureau of Prisons Relief

         A Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 is the primary means through which a federal inmate may collaterally attack a sentence. Davis v. United States, 417 U.S. 333, 343 (1974). 28 U.S.C. § 2255 is not, however, the proper vehicle to challenge the execution of that sentence. Fontanez v. O’Brien, 807 F.3d 84, 86 (4th ...


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