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Howard v. United States

United States District Court, M.D. Alabama, Eastern Division

February 25, 2019

STEPHEN HOWARD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE.

         Before the court is petitioner Stephen Howard's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. Doc. # 1.[1]

         I. INTRODUCTION

         In June 2015, a federal grand jury returned a six-count indictment charging Howard with three counts of possession with intent to distribute 1, 4-butanediol for human consumption, [2] in violation of 21 U.S.C. §§ 813 & 841(a)(1) (Counts 1, 2 and 4); one count of brandishing a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 3); one count of possession of a firearm in furtherance of drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 5); and one count of possession of methamphetamine, in violation of 21 U.S.C. § 844(a) (Count 6). Doc. # 6-4.

         On October 28, 2015, Howard pled guilty without benefit of a plea agreement to Counts 1, 2, 4, and 6 (the counts alleging drug offenses).[3] When pleading guilty to those counts, Howard intended to go to trial on Counts 3 and 5 (the § 924(c) counts).

         On December 7, 2015, however, Howard appeared before the court and pled guilty under a plea agreement to Count 3, which alleged he brandished a pistol during and in relation to a drug trafficking crime (18 U.S.C. § 924(c)(1)(A)(ii)). Doc. # 6-8. Under the plea agreement, the government moved to dismiss Count 5, which charged Howard with possessing a shotgun in furtherance of drug trafficking crime (18 U.S.C. § 924(c)(1)(A)(i)). Doc. # 6-7 at 3. The plea agreement contained an appeal/post-conviction waiver, with exceptions for claims of ineffective assistance of counsel and prosecutorial misconduct. Id. at 6-7.

         Following a sentencing hearing on January 24, 2016, the district court sentenced Howard to 102 months in prison, which consisted of 18 months on Counts 1, 2 and 4 and 12 months on Count 6, those counts to run concurrently, and 84 months on Count 3, to run consecutively to the other counts. Howard did not appeal.

         On September 18, 2016, Howard filed this § 2255 motion claiming his trial counsel was ineffective for (1) failing to apprise him of the government's burden of proof on Count 3 (the firearm-brandishing count); (2) failing to present a defense to that count; and (3) coercing him into pleading guilty to that count. See Docs. # 1 & 2. The government filed a response on November 9, 2016, arguing that Howard's allegations of ineffective assistance of counsel lack merit and entitle him to no relief. Doc. # 6.

         Nearly a year later, on November 6, 2017, Howard amended his § 2255 motion to add a claim that he is actually innocent of the drug-distribution offenses he was convicted of under Counts 1, 2 and 4, because the Controlled Substance Analogue Enforcement Act (“Analogue Act”) is unconstitutionally vague as applied to 1, 4-butanediol. Doc. # 15. The government filed a response arguing that Howard's new claim is time-barred and also lacks merit. Doc. # 19.

         After considering the parties' submissions, the record, and the applicable law, the court finds that Howard's § 2255 motion should be denied without an evidentiary hearing. Rule 8(a), Rules Governing Section 2255 Proceedings for the United States District Courts.

         II. DISCUSSION

         A. General Standard of Review

         Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on final judgments under 28 U.S.C. § 2255 are limited. A prisoner is entitled to relief under § 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255; United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000); United States v. Walker, 198 F.3d 811, 813 n.5 (11th Cir. 1999). “Relief under 28 U.S.C. § 2255 ‘is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted).

         B. Ineffective Assistance of Counsel

         1. Strickland Standard

         A claim of ineffective assistance of counsel is evaluated against the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that “counsel's representation fell below an objective standard of reasonableness.” Id. at 689. Second, the petitioner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. See Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000).

         Scrutiny of counsel's performance is “highly deferential, ” and the court indulges a “strong presumption” that counsel's performance was reasonable. Chandler, 218 F.3d at 1314 (internal quotation marks omitted). The court will “avoid second-guessing counsel's performance: It does not follow that any counsel who takes an approach [the court] would not have chosen is guilty of rendering ineffective assistance.” Id. (internal quotation marks and brackets omitted). “Given the strong presumption in favor of competence, the petitioner's burden of persuasion-though the presumption is not insurmountable-is a heavy one.” Id.

         As noted, under the prejudice component of Strickland, a petitioner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. The prejudice prong does not focus only on the outcome; rather, to establish prejudice, the petitioner must show that counsel's deficient representation rendered the result of the trial fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (“[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.”). “Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.” Id. at 372.

         Unless a petitioner satisfies the showings required on both prongs of the Strickland inquiry, relief should be denied. Strickland, 466 U.S. at 687. Once a court decides that one of the requisite showings has not been made, it need not decide whether the other one has been. Id. at 697; Duren v. Hopper, 161 F.3d 655, 660 (11th Cir. 1998).

         2. Howard's Allegation of Ineffective Assistance of Counsel

         Count 3 of the indictment charged Howard with violating 18 U.S.C. § 924(c)(1)(A)(ii) by brandishing a Ruger 9mm pistol during an undercover narcotics agent's controlled buy of 1, 4-butanediol from Howard. See Doc. # 6-4 at 2. Howard claims that his trial counsel was ineffective for (1) failing to apprise him of the government's burden of proof on the firearm-brandishing count; (2) failing to present a defense to that count; and (3) coercing him into pleading guilty to that count. Doc. # 1 at 4; Doc. # 2 at 2-4. In this regard, Howard alleges that his counsel advised him “there was no defense available” to the firearm-brandishing count and misled him by telling him he would be found guilty of the count “because drugs were found at the scene, and the fact a firearm was partially visible.” Doc. # 2 at 3. Howard maintains that he “handled the firearm with precautions” during the drug deal, and “unloaded it [and] gave it a safety check” before handing it to the agent to look at. Id. at 4. In Howard's view, his possession of the pistol did not amount to brandishing because he had no intent to intimidate the agent with the gun. Id. According to Howard, had he “understood that the government must prove the ‘brandishing' elements, and had he known what exactly ‘brandishing' meant, he would have proceeded to trial” instead of pleading guilty to Count 3. Id. at 3.

         Title 18 § 924(c) provides in part that a defendant who uses or carries a firearm during and in relation to any crime of violence or drug trafficking crime, or possesses a firearm in furtherance of such crime, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to a separate and consecutive term of imprisonment of “not less than 5 years.” 18 U.S.C. § 924(c)(1)(A)(i). And if the firearm is “brandished” during the crime of violence or drug trafficking crime, the consecutive sentence shall be “not less than 7 years.” 18 U.S.C. § 924(c)(1)(A)(ii). For purposes of the statute, “the term ‘brandish' means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person.” 18 U.S.C. § 924(c)(4).

         The Strickland standard for evaluating claims of ineffective assistance of counsel was held applicable to guilty pleas in Hill v. Lockhart, 474 U.S. 52, 58 (1985). A petitioner alleging ineffective assistance in this context must establish that counsel's performance was deficient (i.e., professionally unreasonable) and that counsel's deficient performance “affected the outcome of the plea process.” Hill, 474 U.S. at 59. To establish prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel's errors, he would . . . have pleaded [not] guilty and would . . . have insisted on going to trial.” Id.

         Trial Counsel's Affidavit

         Howard's trial counsel, John Lovell, filed an affidavit addressing Howard's allegations of ineffective assistance. Doc. # 5-1. In his affidavit, Lovell states that when Howard retained his services, around September 2015, the government had already offered Howard a plea deal requiring Howard to accept a total sentence of 171 months (a sentence greater than the 102-month sentence Howard received). Id. at 1-2. According to Lovell, shortly after he took the case, he advised Howard of “the options he faced vis-à-vis trial or plea” and told Howard “repeatedly, clearly and unequivocally that he had the option of going to trial and that I would gladly try his case.” Id. at 2. Lovell avers that he believed the issue of whether Howard “brandished” the pistol referenced in Count 3 was one Howard might win at trial, as opposed to the issue of whether Howard possessed the pistol during the drug deal, which Lovell believed “was never in question.” Id. Because Howard's possession of the pistol was undeniable, Lovell says he recognized “a significant and potentially catastrophic issue looming” if the case went to trial. Id. Two separate § 924(c) counts were charged in Howard's indictment, the one in Count 3 and a second one in Count 5, which involved Howard's possession of a shotgun discovered in a search of his residence. Id. If the jury convicted Howard on both counts, Howard faced a mandatory minimum sentence of 30 years' imprisonment under 18 U.S.C. § 924(c)(1)(C)(i).[4] Id. Lovell considered it possible that Howard could “win” at trial on the brandishing issue in Count 3 but still be convicted on the two § 924(c) counts, for possessing the pistol in a drug trafficking crime (Count 3) and possessing the shotgun in a drug trafficking crime (Count 5), resulting in at least a 30-year sentence. Id. at 3. Lovell states that he discussed these matters fully with Howard. Id. According to Lovell, “[w]hen Mr. Howard contemplated two extra years on the brandishing [count] versus a possible 30-year sentence, he chose to enter a plea.” Id. at 4. Lovell characterizes Howard as “trial adverse.” Id. He maintains that Howard “was always clear to me in his instructions that he did not want to go to trial” and Howard expressed concerns to him “about going to trial and possibly spending the rest of his life in prison.” Id.

         Change of Plea Hearing

         The transcript of Howard's December 7, 2015 change of plea hearing conflicts with Howard's present claims that he did not understand the government's burden of proof on the firearm-brandishing count and that he pled guilty only because he did not know what “brandishing” meant. During the plea colloquy, Howard stated under oath that he understood he had the right to proceed to trial and also understood that, were he to proceed to trial, the government would have to prove, beyond a reasonable doubt, that he brandished a firearm during and in relation to his drug trafficking crime. Doc. # 6-8 at 8-10. Howard also acknowledged that he had not been coerced into pleading guilty, that his plea was knowing and voluntary, and that he was in fact guilty of the offense. Id. at 5-6 & 14.

         During the plea colloquy, the magistrate judge asked Lovell to question Howard regarding the elements of Count 3 to establish a factual basis for his plea. The following exchange occurred:

MR. LOVELL: Mr. Howard, if this case went to trial, is it true that the government would prove that on or about May 14th of 2015 in Lee County, here in the Middle District of Alabama, you possessed with intent to distribute approximately three liters of 1, 4-butanediol knowing that the ...

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