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United States v. Powell

United States Court of Appeals, Fourth Circuit

March 1, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MARVIN WILBERT POWELL, Defendant-Appellant.

          Argued: December 9, 2016

          Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:04-cr-00356-F-1; 5:10-cv-00445-F)

         ARGUED:

          Richard Clarke Speaks, SPEAKS LAW FIRM, Wilmington, North Carolina, for Appellant.

          Seth Morgan Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

         ON BRIEF:

          John Stuart Bruce, Acting United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

          Before WILKINSON, NIEMEYER, and DIAZ, Circuit Judges.

          NIEMEYER, Circuit Judge:

         Marvin W. Powell was convicted of federal drug and firearms offenses and sentenced to 300 months' imprisonment, and his conviction and sentence were affirmed on direct review. Powell then filed a motion under 28 U.S.C. § 2255 to vacate his conviction and sentence on numerous grounds, most of which were based on his claim that his trial counsel provided him with ineffective assistance, violating his Sixth Amendment right to counsel. As to the specific claim of ineffective assistance at issue here, he alleged that his counsel's performance was deficient because she failed to bring to the attention of the trial court the fact that, before the trial began, a member of the jury approached Powell's father while entering the courthouse and told him that "everything would be alright" and that he needed to give his son "a good kick in the butt, " thereby allegedly demonstrating bias against Powell.

         The district court denied Powell's § 2255 motion, and we affirm. Because the juror's alleged statement did not sufficiently indicate actual bias against Powell but was instead ambiguous, we conclude that his counsel's response fell within the range of competent representation required by the Sixth Amendment.

         I

         After a three-day trial in June 2005, a jury convicted Powell of (1) possessing with the intent to distribute 50 grams or more of cocaine base and a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; (2) participating in a conspiracy to possess with the intent to distribute more than 50 grams of cocaine base and a quantity of cocaine, in violation of 21 U.S.C. § 846; (3) possessing with the intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1); (4) possessing a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and (5) possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924. Imposing a downward variance sentence, the district court sentenced Powell to 300 months' imprisonment.[1] On appeal, we affirmed. United States v. Powell, 225 F.App'x 138 (4th Cir. 2007) (per curiam). The Supreme Court, however, vacated our judgment and remanded for further consideration in light of Kimbrough v. United States, 552 U.S. 85 (2007). See Powell v. United States, 552 U.S. 1091 (2008) (mem.). On remand, the district court imposed the same term of imprisonment at Powell's resentencing. On appeal, we rejected Powell's challenge to the substantive reasonableness of his sentence and again affirmed. United States v. Powell, 330 F.App'x 433 (4th Cir. 2009) (per curiam). The Supreme Court denied Powell's second petition for certiorari in October 2009. Powell v. United States, 558 U.S. 976 (2009) (mem.).

         In his pro se § 2255 motion, Powell raised 16 different challenges to his conviction and sentence, many of which were premised on his trial counsel's allegedly ineffective assistance. In one of these claims, Powell alleged that his trial counsel provided ineffective assistance because she failed to attempt to have a biased juror removed. In support of this claim, he submitted his own affidavit, as well as one from his father, which detailed an ...


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