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United States v. Howard

United States District Court, Third Circuit

November 5, 2013

UNITED STATES OF AMERICA
v.
YUSEF HOWARD Civil Action No. 11-6352

MEMORANDUM

JOHN R. PADOVA, District Judge.

Yusuf Howard filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (the "§ 2255 Motion"). We held an evidentiary hearing on the Motion on September 11, 2013. For the following reasons, we deny the § 2255 Motion.

I. BACKGROUND

The February 3, 2004 Indictment in this case charged Howard with possession with intent to deliver cocaine base ("crack") in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (Count I); carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count II); and felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e) (Count III). On April 23, 2004, after a jury trial, at which Howard was represented by Scott Godshall, Esq., Howard was convicted of all charges. At sentencing, Howard was found to have a total offense level of 34 due to his status as an armed career criminal. (N.T. 9/9/04, at 13.) That offense level, combined with his Criminal History Category of VI, gave rise to an advisory Guidelines range of 262-327 months of imprisonment, and with the addition of the mandatory 60-month consecutive sentence under § 924(c), his effective advisory Guidelines range was 322-387 months. We sentenced Howard on September 9, 2004, to total term of imprisonment of 322 months, consisting of 240 months for the drug offense in Count I, a concurrent term of 262 months for the felon in possession charge in Count III, and a consecutive term of 60 months for the § 924(c)(1) firearm charge in Count II.

Howard appealed to the United States Court of Appeals for the Third Circuit, which affirmed his conviction, but remanded the matter for resentencing in accordance with United States v. Booker , 543 U.S. 220 (2005). United States v. Howard, 248 F.Appx. 437, 439-40 (3d Cir. 2007). On December 10, 2007, in connection with the resentencing, we appointed Frances Alperin Shapiro, Esq. as new counsel for Howard. We resentenced Howard on October 1, 2008. Although Howard's advisory Guidelines range remained the same, we resentenced Howard to a total term of imprisonment of just 240 months, consisting of 70 months for the drug offense in Count I, a mandatory concurrent term of 180 months for the felon in possession charge in Count III, see 18 U.S.C. § 924(e) (setting forth a fifteen-year mandatory minimum for an armed career criminal who violates 18 U.S.C. § 922(g)), and a mandatory consecutive term of 60 months for the firearm charge in Count II, see 18 U.S.C. § 924(c). Howard again appealed his sentence. The Third Circuit affirmed the amended judgment of sentence on March 11, 2010. Howard then filed a Petition for a Writ of Certiorari with the United States Supreme Court. The Supreme Court denied that Petition on October 4, 2010. Howard v. United States , 131 S.Ct. 239 (2010).

Howard filed a § 2255 Motion in October of 2011, and filed an Amended Motion on December 2, 2011. In the Amended Motion, Howard asserts four grounds for relief. In the first and second grounds for relief, Howard claims that trial counsel was ineffective insofar as he misadvised Howard that the maximum sentence Howard would receive after trial was 165 months and, as a result, failed to give informed and intelligent advice regarding Howard's guilty plea options. As his third ground for relief, Howard argues that his sentencing counsel was ineffective for failing to challenge his designation as an armed career criminal. In his fourth ground for relief, Howard claims that his sentencing counsel was ineffective for failing to object to the calculation of Howard's criminal history points.

In June of 2012, the Government filed a response in opposition to the Motion, in which it argued only that Howard's Motion was untimely. On September 28, 2012, we issued an Order requiring the Government to address the applicability of the prison mailbox rule and also to address Howard's claims on their merits. The Government filed its supplemental memorandum on March 11, 2013.

On May 7, 2013, we appointed counsel to represent Howard and scheduled an evidentiary hearing. On September 3, 2013, Howard's counsel filed a supplemental memorandum in support of Howard's § 2255 Motion. We held an evidentiary hearing on the Motion on September 11, 2013. At that hearing, the parties advised the Court that the timeliness issue was "off the table, " and therefore addressed only the merits of Howard's Motion. (N.T. 9/11/13, at 2.)

II. LEGAL STANDARD

Howard has moved for relief pursuant to 28 U.S.C. § 2255, which provides as follows:

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 that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). "Section 2255 does not provide habeas petitioners with a panacea for all alleged trial or sentencing errors.'" United States v. Perkins, Crim. A. No. 03-202, Civ. A. No. 07-3371, 2008 WL 399336, at *1 (E.D. Pa. Feb. 14, 2008) (quoting United States v. Rishell, Crim. A. No. 97-294-1, Civ. A. No. 01-486, 2002 WL 4638, at *1 (E.D. Pa. Dec. 21, 2001)). In order to prevail on a § 2255 motion, the movant's claimed errors of law must be constitutional, jurisdictional, "a fundamental defect which inherently results in a complete miscarriage of justice, " or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States , 368 U.S. 424, 428 (1962).

Howard's claims are all based on alleged ineffective assistance of counsel. In order to prevail on a claim for ineffective assistance of counsel, a criminal defendant must demonstrate both that (1) his attorney's performance was deficient, i.e., that the performance was unreasonable under prevailing professional standards, and (2) that he was prejudiced by the attorney's performance. Strickland v. Washington , 466 U.S. 668, 687-88 (1984). An attorney's performance is deficient if it falls "below an objective standard of reasonableness." Id . at 688. Prejudice is proven if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id . at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id . It "does not require certainty or even a preponderance of the evidence that the outcome would have been different with effective assistance of counsel; it requires only a reasonable probability" which is a "relatively low standard." Boyd v. Waymart , 579 F.3d 330, 354 (3d Cir. 2009) (quotation omitted). On the other hand, counsel cannot be found to be ineffective for failing to ...


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