United States District Court, W.D. Kentucky, Bowling Green Division
B. RUSSELL JUDGE.
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.
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].
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
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
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 #
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).
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
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).]
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)).
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.
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)).
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 ...