Houston v. United States of America
Filing
9
REPORT AND RECOMMENDATIONS denying re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Morgan Houston. In forma pauperis status on appeal should likewise be denied. Objections to R&R due by 3/27/2013. Signed by Magistrate Judge G. R. Smith on 3/13/2013. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
MORGAN HOUSTON,
Movant,
Case No.
V.
CV412-194
CR409-058
UNITED STATES OF AMERICA,
Respondent.
REPORT AND RECOMMENDATION
This Court sentenced movant Morgan Houston to 180 months'
imprisonment for possession of a firearm by a convicted felon. (Cr. doc.
57. 1 ) He now seeks 28 U.S.C. § 2255 relief, contending that he should
not have been sentenced as an Armed Career Criminal, since he had not
accumulated the requisite "violent felony" or "serious drug" offenses
mandating a minimum sentence of 180 months under the Armed Career
Criminal Act ("ACCA"), found at 18 U.S.C. § 924(e). (Doc. 1 (§ 2255
1
"Doe." citations are to the docket in Houston's civil case, CV412-194; any
citation to his criminal case will be notated "Cr. doe." Additionally, page references
are to the CMIECF screen page rather than the referenced document's own internal
pagination.
motion).) He also faults his attorney for failing to advise him that he
did not qualify for the sentencing enhancement.
(Id.) The trouble is,
Houston did qualify for the enhancement. Hence, his claims fail.
On August 31, 1984, at the age of 18, Houston received a 10-year
aggravated assault conviction for shooting someone after a football
game in Garden City, Georgia. (Presentence Investigation Report (PSI)
¶ 24.) He was paroled in 1988, but by June 1992 he was again
convicted of a crime, this time for the sale of cocaine and marijuana.
(PSI ¶ 25.) He received a 13-year sentence, but was paroled in 1996.
(Id.)
After some miscellaneous trouble with the law, including
convictions for drug possession and simple battery, Houston was busted
again in 2001 for trafficking in cocaine. (PSI ¶ 28.) He was sentenced
to serve 10 years' imprisonment, but was again paroled early, this time
in 2006. (Id.)
The instant offense conduct occurred in 2009. Working with a
confidential informant, local police officers learned that Houston was
again selling powder cocaine and had several weapons in his residence.
(PSI ¶ 4.) Agents entered the residence and found Houston flushing
cocaine down the toilet. (PSI ¶ 5.) He wasn't fast enough, as the agents
discovered that he still had several smaller bags of cocaine in his
possession, and a gun was lying nearby.
(Id.)
He was charged with
trafficking in drugs and possession of a firearm by a convicted felon.
(Cr. doe. 1 (indictment).)
At the age of 47, Houston has spent most of his adult life in
prison, on parole, or on probation, for his repeated drug and gun-related
offenses, yet he insists that he is not an Armed Career Criminal within
the meaning of the statute. (Doc. 1; doe. 2 (memo); doe. 7 (reply to
government's response).) He presents somewhat of a moving target.
Initially, he claimed that the enhancement was applied based on
convictions for simple possession and simple battery. (Doc. 2 at 5.)
Those convictions, which resulted in probated sentences, were not the
basis for the enhancement. (PSI ¶11 26, 27, & 32 (explicitly stating that
the enhancement was based upon the three crimes discussed above).)
After the government pointed that out in its response (doe. 5), Houston
3
changed tack (doc. 7)•2 He now concedes that the sentencing
enhancement was based upon the major convictions discussed above, but
he claims that his 1992 conviction for the sale of cocaine and marijuana
does not qualify as a predicate "serious drug offense" conviction, since
convictions on either the marijuana or cocaine charges could only result
in 3-7 year sentences .3 (Id. at 4-5.)
Under the terms of the recidivist statute, "serious drug offenses"
must be punishable by a maximum term of imprisonment of ten or more
years. 18 U.S.C. § 924(e)(2)(A)(ii). While Houston insists, without any
support, that he faced only a 3-7 year sentence under the applicable
Georgia statute, he is mistaken at best. At the time of Houston's
2
The government asks that the Court construe Houston's response as a
motion to amend the pleadings, but notes that it does not oppose the motion. (Doe. 8
at 2.) As will be seen in text, any amendment would be futile, and thus subject to
denial under Fed. R. Civ. P. 15. Foman v. Davis, 371 U.S. 178, 182 (1962).
Nevertheless, for the purposes of this Report and Recommendation, the Court
GRANTS Houston's implicit motion to amend. (Doe. 7.)
He also claims that the 1984 conviction is too old to count. (Doe. 2 at 9-10.)
Houston relies on Guidelines provisions limiting the time period in which sentences
can be counted towards a defendant's criminal history category. (Doe. 2 at 9.) The
ACCA enhancement is statutory however, and there is no remoteness bar for
counting ACCA offenses. See United States v. Green, 904 F.2d 654, 655 (11th Cir.
1990) (noting that the statute itself is silent on remoteness and holding that the rules
of statutory construction permit the counting of a 30-year-old conviction and
sentence for ACCA purposes).
4
conviction, Georgia law provided that a person convicted of selling
controlled substances must be "punished by imprisonment for not less
than five years nor more than 30 years." O.C.G.A. § 16-13-30(b) & (d)
(1992). In fact, Houston was sentenced to 13 years on the cocaine counts
and 10 years concurrent on the marijuana count. (PSI ¶ 25.) In other
words, he received a sentence higher than the 3-7 year range he now
insists upon. Since the maximum sentence under the statute exceeds 10
years, the 1992 conviction qualifies as a "serious drug offense." Houston,
then, fit the ACCA enhancement, so cannot fault the Court for applying
it or his attorney for failing to challenge it. 4
' On ineffective assistance of counsel claims the Court applies Strickland v.
Washington, 466 U.S. 668, 687 (1984), which created a two-part test for determining
whether counsel performed ineffectively. First, the movant must demonstrate that
his attorney's performance was deficient, which requires a showing that "counsel
made errors so serious that counsel was not functioning as the 'counsel' guaranteed
by the Sixth Amendment." 484 U.S. at 687. Second, the defective performance must
have prejudiced the defense to such a degree that the results of the trial cannot be
trusted. Id.
5
For the foregoing reasons, Houston's § 2255 motion should be
DENIED. Applying the Certificate of Appealability ("COX') standards,
which are set forth in Brown v. United States, 2009 WL 307872 at * 1-2
(S.D. Ga. Feb. 9, 2009) (unpublished), the Court discerns no COAworthy issues at this stage of the litigation, so no COA should issue. 28
U.S.C. § 2253(c)(1); see Alexander v. Johnson, 211 F.3d 895, 898 (5th
Cir. 2000) (approving sua sponte denial of COA before movant filed a
notice of appeal). And since there are no non-frivolous issues to raise on
Under the performance prong, the reasonableness of an attorney's
performance is to be evaluated from counsel's perspective at the time of the alleged
error and in light of all the circumstances. Id. at 690. It is generally appropriate to
look to counsel's performance throughout the case in making such a determination.
Kimmelman v. Morrison, 477 U.S. 365, 386 (1986). The movant carries a heavy
burden, as "reviewing courts must indulge a strong presumption that counsel's
conduct falls within the wide range of professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy." Id. at 689. Indeed, Houston must show
that "no competent counsel would have taken the action that his counsel did take."
Ford v. Hall, 546 F.3d 1326, 1333 (11th Cir. 2008), quoting Chandler v. United
States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en bane).
For the prejudice prong Houston must show that there was a reasonable
probability that the results would have been different but for counsel's deficient
performance. Kimmelman, 477 U.S. at 375; Strickland, 466 U.S. at 696. "A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694; see also Lightbourne v. Dugger, 829 F.2d
1012, 1022 (11th Cir. 1987); Boykins v. Wainwright, 737 F.2d 1539, 1542 (11th Cir.
1983).
Here, Houston has utterly failed to show that his attorney rendered deficient
performance by failing to challenge the ACCA enhancement or by failing to explain it
to him or investigate it in better detail.
appeal, an appeal would not be taken in good faith. Thus, in forma
pauperis status on appeal should likewise be DENIED. 28 U.S.C. §
1915(a)(3).
SO REPORTED AND RECOMMENDED
this
/37
day of
March, 2013.
SASGITRATE JUDGE
SOUTHER DISTRICT OF GEORGIA
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?