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Howard v. United States

United States District Court, S.D. Alabama, Southern Division

January 9, 2019

ROBERT JAMES HOWARD, # 03914-003, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Petitioner Robert James Howard's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 33), the Government's Response in Opposition (Doc. 35), Howard's “Traverse to United States's Opposition to Motion to Vacate, Set Aside, or Correct Sentence” (Doc. 37), Howard's Notice of Eligibility/Motion to Vacate/Motion for Appointment of Counsel (Doc. 38), and Howard's Motion to Amend Previously Submitted Motion to Vacate, Set Aside, or Correct Sentence (Doc. 39). This action was referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 8(b) of the Rules Governing Section 2255 Proceedings and is now ready for consideration.[1] Having carefully reviewed the record, the undersigned finds that no evidentiary hearing is necessary for the disposition of this matter.[2]

         Upon consideration, the undersigned hereby recommends that Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 be DENIED, that his motions to amend and for appointment of counsel be DENIED, that this action be DISMISSED, and that judgment be entered in favor of Respondent, the United States of America, and against Petitioner, Robert James Howard. The undersigned also recommends that should Howard file a certificate of appealability, it should be denied, as he is not entitled to appeal in forma pauperis.

         I. PROCEDURAL BACKGROUND

         On January 31, 2014, Robert James Howard was indicted on the following charges: (1) conspiracy to possess cocaine containing a cocaine base; (2) possession with the intent to distribute crack cocaine; (3) knowingly possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c); and (4) being a felon in possession of a firearm. (Doc. 1 at 1-4). On August 11, 2014, Howard's appointed counsel advised the Court of Howard's desire to enter into a counseled plea agreement. (Doc. 16). In the plea agreement, Howard agreed to plead guilty to the drug conspiracy offense (count one) and possession of a firearm in furtherance of a drug trafficking crime (count three).[3] (Doc. 17 at 1-2) .

         As part of the plea agreement, Howard agreed to waive his right to file “any direct appeal or any collateral attack, including a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.” (Id. at 11). However, Howard reserved his right to timely file a direct appeal challenging any sentence imposed in excess of the statutory maximum or any sentence which constituted an upward departure or variance from the guideline range, and Howard also reserved his right to claim ineffective assistance of counsel in a direct appeal or a 28 U.S.C. § 2255 motion. (Id.). In return, the Government agreed that it would not bring any additional charges against Howard related to the facts underlying the indictment and that it would recommend to the Court that Howard be sentenced at the low end of the advisory sentencing guideline range or at the low end of any mandatory statutory sentence, as determined by the Court. (Id. at 6). The Government also agreed that if, in its sole discretion, Howard provided substantial assistance in the investigation or prosecution of another criminal offense, the Government would move for a downward departure in accordance with U.S.S.G. § 5K1.1 or would file a Rule 35 motion pursuant to the Federal Rules of Criminal Procedure. (Id. at 6-8). The Government further agreed that if Howard's cooperation did not amount to substantial assistance, as determined by the Government, the Government would recommend that Howard be sentenced at the low end of the sentencing guidelines range. (Id. at 9) .

         On August 18, 2014, Howard entered a plea of guilty to counts one and three of the indictment. (Doc. 18). During the guilty plea hearing, Howard was placed under oath and Judge Granade questioned him regarding the voluntariness of his plea. Howard testified as follows:

THE COURT: All right. Mr. Howard, I understand you are pleading guilty to counts one and three of the indictment, is that correct?
DEFENDANT HOWARD: Yes, ma'am.
THE COURT: Have each of you received a copy of the indictment, the written charges in your case?[4]
DEFENDANT HOWARD: Yes ma'am.
THE COURT: Are you fully satisfied with the counsel, representation, and advice given to you in your case by your lawyer?
DEFENDANT HOWARD: Yes ma'am. . . .
THE COURT: Now, for each of you I have received a written plea agreement and an attached factual resume and I want you to take a look at those documents and tell me on the record whether that is your plea agreement and factual resume and whether you signed those document.
THE COURT: Mr. Howard?
DEFENDANT HOWARD: Yes, ma'am. . . .
THE COURT: Did you have the opportunity to read and discuss your plea agreement with your lawyer before you signed it?
DEFENDANT HOWARD: Yes ma'am. . . .
THE COURT: Do you have any agreements with the government concerning your case that are not written down in your plea agreement?
DEFENDANT HOWARD: No. . . .
THE COURT: . . . Do you understand the terms of your plea agreement?
DEFENDANT HOWARD: Yes ma'am.
THE COURT: Has anyone made any promise or assurance to you of any kind in order to persuade you to accept this plea agreement?
DEFENDANT HOWARD: No ma'am. . . .
THE COURT: Has anyone threatened you in any way to persuade you to accept the plea agreement?
DEFENDANT HOWARD: No ma'am. . . .
THE COURT: Do you understand that certain of the terms of your plea agreement are merely recommendations to the Court and that I can reject those recommendations without permitting you to withdraw your plea of guilty and impose a sentence that's more severe than you might anticipate?
DEFENDANT HOWARD: Yes, ma'am. . . .
THE COURT: Has anyone attempted in any way to force you to ...

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