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United States v. Hammadi

United States District Court, W.D. Kentucky, Bowling Green Division

July 19, 2017

UNITED STATES OF AMERICA, Respondent/Plaintiff,
v.
MOHANAD SHAREEF HAMMADI, Movant/Defendant.

          MEMORANDUM OPINION

          THOMAS B. RUSSELL JUDGE.

         In 2012, Mohanad Shareef Hammadi pleaded guilty to multiple charges in connection with his involvement in a plot to provide money, weapons, and material support to al Qaeda in Iraq. The Court sentenced him to term of life imprisonment, and the Sixth Circuit Court of Appeals affirmed on direct appeal. Hammadi did not pursue a writ of certiorari. Instead, he timely filed a motion to vacate, set aside, or correct his life sentence pursuant to 28 U.S.C. § 2255.

         The Court referred that motion to Magistrate Judge H. Brent Brennenstuhl for findings of fact, conclusions of law, and a recommended disposition. In a well-reasoned opinion, the Magistrate Judge concluded that none of Hammadi's arguments merited relief and, therefore, recommended that his motion be denied. Hammadi disagrees, and so objects to the Magistrate Judge's conclusion. With the exception of a single (and, ultimately, insignificant) factual mistake, the Court agrees with the Magistrate Judge's opinion in full. Therefore, the Court ADOPTS IN PART and REJECTS IN PART the Magistrate Judge's Findings of Fact, Conclusions of Law, and Recommendation, [R. 206], SUSTAINS IN PART and OVERRULES IN PART Hammadi's Objection, [R. 207], and DENIES Hammadi's Motion to Vacate, Set Aside, or Correct Sentence, [R. 148].

         I.

         A.

         The history of this case is long and storied. However, the circumstances leading up Mohanad Shareef Hammadi's indictment and arrest remain undisputed.

In 2009, the Federal Bureau of Investigation launched an investigation of Waad Ramadan Alwan-an Iraqi national living in Bowling Green-after his fingerprints appeared on fragments of an improvised explosive device (“IED”) in Iraq. During the investigation, the FBI introduced Alwan to a confidential human source (“CHS”), who met with Alwan and recorded their conversations starting in August 2010. The CHS led Alwan to believe that the undercover government agent was part of a group sending money and weapons to the Mujahidin-Muslims engaged in Jihad, a holy war against infidels-in Iraq. During their conversations, Alwan described his past actions as an insurgent in Iraq to the CHS, including his use of IEDs and sniper rifles against American soldiers.
Between September 23, 2010 and January 10, 2011, Alwan assisted the CHS in sending what Alwan believed to be money and weapons to the Mujahidin several times. By January 11, 2011, Alwan was asking to lead the Bowling Green cell of the CHS's fictional terrorist organization. The CHS instructed Alwan to recruit others, and afterward Alwan approached multiple people whom he suspected of having violent, anti-American views. Several individuals rebuffed his offers to join the cell. Hammadi accepted. Alwan then took Hammadi to meet with the CHS and vouched for Hammadi as an experienced Iraqi insurgent.
In Iraq, as Hammadi would later tell the CHS and the FBI, he had participated in approximately ten IED attacks on American troops and convoys with at least two different cells, including al Qaida. Hammadi had been arrested for one of the IED attacks, but bribed his way free and fled to Syria. Once in Syria, he applied for refugee status in order to immigrate to the United States. On March 1, 2009, in a “Sworn Statement of Refugee Applying for Admission into the United States form, ” Hammadi answered “no” when asked if he had engaged in terrorist activity before. Presentence Report (“PSR”) at 13, ¶¶ 41-42. Similarly, in December 2010, when asked on his application for a green card if he had engaged in terrorist activity, Hammadi answered “no.” These two answers represent the conduct charged in Counts 11 and 12 in the Superseding Indictment. See R. 62 at 6-7 (Page ID # 334-35).
Hammadi entered the United States in July 2009, initially settling in Las Vegas with the help of a Catholic charity. He had $900 to his name, brought only a carry-on bag filled with belongings, and spoke little English. He failed to find employment, moving eventually to Bowling Green to work at a poultry factory. Hammadi did so on the recommendation of Alwan, whose family he knew from Iraq and whom he had met in Syria. Hammadi eventually quit his work at the poultry factory, and he claimed to be indigent when Alwan approached him about joining the fictional terrorist cell in January 2011.
For whatever reason, Hammadi agreed to accompany Alwan to a meeting with the CHS on January 25, 2011. At that meeting, the CHS explained the scheme for sending money and weapons to insurgents in Iraq, and Hammadi made recommendations as to how to accomplish their objectives. Then, on January 27, Hammadi and Alwan took $100, 000 from the CHS and transported the money to a tractor trailer, believing that it would then find its way to the Mujahidin in Iraq. This conduct violated 18 U.S.C. § 2339A and served as the basis for Count 1. See R. 62 (Super. Indictment at 1) (Page ID # 329).
On February 15 and 16, Hammadi and Alwan packed two rocket-propelled grenade launchers (“RPGs”), two machine guns, two boxes of plastic explosives, and two sniper rifles into duffel bags. The CHS informed them that these weapons were intended for al Qaida in Iraq. Hammadi and Alwan then took the weapons and placed them in hidden compartments of another tractor trailer, attempting to send the weapons to terrorists, in violation of 18 U.S.C. §§ 2339A and 2339B. This conduct served as the basis for Counts 2 and 3. See R. 62 (Super. Indictment at 1- 2) (Page ID # 329-30).
After they delivered the weapons, the CHS told Hammadi and Alwan that they might ship surface-to-air missiles in the future. Hammadi responded with enthusiasm, expressing his support for sending such missiles given that one of his terrorist cells in Iraq had acquired eleven of them. On March 15, the CHS instructed Hammadi and Alwan that they would send two Stinger-missile systems as a test run, and the next day, Hammadi and Alwan loaded the Stingers into another tractor trailer. These actions also violated 18 U.S.C. §§ 2339A and 2339B and made up the basis of Counts 4 and 5. See R. 62 (Super. Indictment at 2-3) (Page ID # 330-31). Furthermore, their conspiracy to deliver the surface-to-air missiles violated 18 U.S.C. § 2332g, which the government charged in Count 10. Id. at 5-6 (Page ID # 333-34).
Following the delivery of the Stinger missiles, Hammadi and Alwan transported money and weapons-supplied by the CHS and the government-on two other occasions in violation of 18 U.S.C. §§ 2339A and 2339B. This conduct served as the basis for Counts 6, 7, 8, and 9. R. 62 (Super. Indictment at 3-5) (Page ID # 331-33). Hammadi and Alwan also plotted to murder a U.S. Army Captain whom they knew from Iraq, and Hammadi admitted to being a member of the “Tandheem, ” a common euphemism for al Qaida in Iraq. PSR at 12, ¶¶ 36-37. During the last delivery on May 25, the FBI arrested Hammadi and Alwan.

United States v. Hammadi, 737 F.3d 1043, 1045-46 (6th Cir. 2013).

         A federal grand jury indicted Hammadi on the twelve counts discussed above. [R. 62 at 1-7 (Superseding Indictment).] During his initial appearance, Magistrate Judge James D. Moyer appointed James Earhart to represent Hammadi. [R. 17 at 2 (Order of May 31, 2011).] The Government and Hammadi attempted to negotiate a plea agreement for more than a year. When those negotiations broke down, Hammadi entered an open plea as to all counts alleged in the indictment. [R. 91 at 1 (Order of August 22, 2012).] The Court sentenced Hammadi to term of life imprisonment. [R. 115 at 3 (Judgment).] Hammadi appealed that sentence to the Sixth Circuit Court of Appeals, which affirmed in a published decision. He did not seek a writ of certiorari, and so his conviction became final in March 2014. [See R. 140 at 3 (Memorandum Opinion).]

         B.

         Instead, Hammadi timely filed a motion to vacate, set aside, or correct his life sentence pursuant to 28 U.S.C. § 2255. [R. 148 (Motion to Vacate, Set Aside, or Correct Sentence).] Consistent with local practice, and as authorized under 28 U.S.C. § 636(b)(1)(A)-(B), the Court referred that motion to Magistrate Judge H. Brent Brennenstuhl for findings of fact, conclusions of law, and a recommended disposition. [R. 149 at 1-2 (Order of Referral).] The Magistrate Judge held an evidentiary hearing on that motion. [R. 191 (Order of June 16, 2016).] In a well-reasoned opinion, he concluded that none of Hammadi's arguments merited relief and, therefore, recommended that his motion be denied. [R. 206 at 5-37 (Findings of Fact, Conclusions of Law, and Recommendation).] Hammadi disagrees, and so objects to the Magistrate Judge's opinion. [R. 207 (Objection).]

         II.

         It is well settled that this Court must review the objected-to portions of a report and recommendation de novo. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). To merit de novo review, an objection to the recommended disposition must be specific. See Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995); Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). An objection is specific when “it ‘explain[s] and cite[s] specific portions of the report which [counsel] deem[s] problematic.'” Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007) (alterations in original) (quoting Smith v. Chater, 121 F.3d 709, 1997 WL 415309, at *2 (6th Cir. 1997) (unpublished table decision)). The failure to file specific objections to a magistrate's report generally “constitutes a waiver of those objections.” Carter v. Mitchell, 829 F.3d 455, 472 (6th Cir. 2016) (quoting Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004)).

         III.

         Pursuant to 28 U.S.C. § 2255, Hammadi filed the instant motion to vacate, set aside, or correct his life sentence. In that motion, Hammadi raised a number of questions about his counsel's performance. Those issues spanned from his counsel's performance during the plea-bargaining process through the resolution of his direct appeal.

         To warrant relief under § 2255, the movant, such as Hammadi, must establish either (1) that his conviction resulted from “an error of constitutional magnitude, ” (2) that the sentence imposed was “outside statutory limits, ” or (3) that “an error of fact or law . . . was so fundamental as to render the entire proceeding invalid.” United States v. Doyle, 631 F.3d 815, 817 (6th Cir. 2011) (quoting Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001)). An ineffective-assistance-of-counsel claim under the Sixth Amendment falls within the first of those three categories. Id. (citing Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006); Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)).

         To prevail on that claim, the movant must demonstrate (1) that counsel's performance was “deficient” and (2) that he was “prejudiced” as a result. United States v. Mahbub, 818 F.3d 213, 230-31 (6th Cir. 2016) (quoting Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). “Deficient performance means that ‘counsel's representation fell below an objective standard of reasonableness.'” Moreland v. Robinson, 813 F.3d 315, 328 (6th Cir. 2016) (quoting Nichols v. Heidle, 725 F.3d 516, 539 (6th Cir. 2013)). In making that assessment, the movant's attorney enjoys a strong presumption of having “rendered adequate assistance” and of having “made all significant decisions in the exercise of reasonable professional judgment.” Pough, 442 F.3d at 966 (quoting Strickland, 466 U.S. at 690). The Court must “take care to avoid ‘second-guessing' strategic decisions that failed to bear fruit.” Lundgren v. Mitchell, 440 F.3d 754, 770 (6th Cir. 2006) (quoting Strickland, 466 U.S. at 689). Prejudice, in the context of a guilty ...


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