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United States v. Howard

United States District Court, D. Maryland

March 9, 2016

UNITED STATES OF AMERICA
v.
DAVID HOWARD, ET AL. Criminal No. MJG-11-0494

DECISION DENYING § 2255 MOTION

MARVIN J. GARBIS, UNITED STATES DISTRICT JUDGE

The Court has before it Petitioner's Amended Motion to Vacate, Set Aside, or Correct Sentence [ECF No. 271]. The Court finds that a hearing is unnecessary.

I. BACKGROUND

On September 6, 2012, Petitioner was convicted on a plea of guilty to one count of conspiracy to interfere with commerce by robbery (Count 1) and two counts of the use and brandishing of a firearm in furtherance of a crime of violence (Counts 10, 13). The plea agreement included, pursuant to Rule 11(c)(1)(C), an agreement to a total sentence of 384 months plus one day. On January 22, 2013, the Court accepted the agreement and sentenced Petitioner to 1 day on Count 1, 84 months in Count 10 and 300 months on Count 13, all consecutive for a total of 384 months plus one day. See Judgment [ECF No. 181].

On December 5, 2012, Petitioner filed a Motion to Withdraw Guilty Plea [ECF No. 128-1]. On January 22, 2013, the Court denied the motion. Tr. 56:9, Jan. 22, 2013, ECF No. 204.

On February 5, 2013, Petitioner filed a Notice of Appeal [ECF No. 185]. On December 18, 2013, the United States Court of Appeals for the Fourth Circuit affirmed Petitioner's conviction and sentence. United States v. Howard, 549 F.App'x 164 (4th Cir. 2013).

By the instant Motion, timely filed, pursuant to 28 U.S.C. § 2255, Petitioner seeks to have his conviction and sentence vacated.

II. DISCUSSION

Title 28 U.S.C. § 2255 provides, in pertinent part:

a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

A. Claims Resolved on Direct Appeal or Defaulted

Subject to exceptions not here relevant, [1] a section 2255 proceeding may not be used to relitigate questions that were raised and considered on direct appeal. See United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001). Moreover, subject to exceptions not here relevant, [2] a claim is "procedurally defaulted" if it is the type of claim that "can be fully and completely addressed on direct review based on the record created" in the trial court, but was not raised on direct appeal. Bousley v. United States, 523 U.S. 614, 622 (1998).

By the instant motion, Petitioner seeks to relitigate grounds for relief presented to, and resolved by, the appellate court. He cannot do so.

Petitioner's Notice of Appeal specifically referred to the denial of his Motion to Withdraw his Guilty Plea [ECF No. 128-1], [3] a motion presenting contentions that he had not had the effective assistance of counsel in regard to his pleading guilty.

The appellate court affirmed Petitioner's conviction and the denial of the said motion. United States v. Howard, 549 F.App'x 164 (4th Cir. 2013).

The appellate court:

• Rejected Petitioner's claim "that his plea was involuntary based upon his medical and emotional problems and medication and that his counsel and the court should have made a more searching inquiry prior to the Rule 11 hearing and at the motion to withdraw hearing." Id. at 167.
• Rejected Petitioner's claim that "the district court erred in failing to make a sufficient record regarding the threats to investigate and prosecute his mother and the use of these threats to coerce his plea." Id.
• Rejected Petitioner's contention that he had "credibly asserted his innocence." Id. at 168.
• Rejected Petitioner's contention "that he did not have close assistance of competent counsel." Id.
• Held that Petitioner had presented "no evidence in district court (or on appeal) showing that he had a reasonable chance for success at trial." Id.

The appellate court further considered and rejected Petitioner's "remaining claims of error." Id.

The Court need not, and shall not, address Petitioner's claims that were resolved by the appellate court.

B. Ineffective Assistance of Counsel Claims

If a defendant in a criminal case were denied the effective assistance of counsel, the defendant would have a ground, cognizable under § 2255, to have his/her conviction vacated. However, to prevail on a claim that counsel's representation violated his Sixth Amendment right to effective assistance of counsel, Petitioner must show (1) "that counsel's representation fell below an objective standard of reasonableness, "[4] and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome [of the proceedings]." Id. at 694.

Petitioner has made a series of claims that he was denied the effective assistance of counsel. Initially, he claimed that Charles Curlett, Esquire, his attorney at the time he pleaded guilty, was ineffective. He was appointed successor counsel, Thomas Crowe, Esquire, to advocate his claim that Mr. Curlett had failed to provide effective assistance. After the Court denied the claim against Mr. Curlett, Petitioner claimed that Mr. Crowe had rendered ineffective assistance in regard to the claim. Petitioner was appointed appellate counsel, Mr. Hart, who proceeded on his behalf in the United States Court of Appeals for the Fourth Circuit. After the appellate court ruled against Petitioner, he claimed that Mr. Hart rendered ineffective assistance.

None of Petitioner's claims of ineffective assistance of counsel are valid.

1. Mr. Curlett In his Motion to Withdraw Guilty Plea [ECF No. 128-1], Petitioner claimed that his trial counsel, Mr. Curlett:

• Failed to thoroughly investigate my discovery and the facts of the alleged crimes committed.
• Failed to provide me with discovery material, or at least visit enough to give me a chance to properly evaluate all of the information for myself.
• Did not demonstrate reasonable knowledge of my entire case including but not limited to the lack of any material evidence against me.
• Dismissed my claims of innocence, concerns about threats being made to my family by the government, as well as my concern about false and coerced statements that ...

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