SNOW v. USA

Filing 22

ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255) - Petitioner Ernest R. Snow's Motion to Vacate or Set Aside Sentence pursuant to 28 U.S.C. § 2255 is GRANTED. Judgment shall be entered accordingly. Petitioner Ernest R. Snow&# 039;s Motion for Immediate Ruling is GRANTED to the extent it seeks an expedited ruling, but is DENIED with respect to any other relief it may have sought. The Court Orders that the Petitioner Ernest R. Snow be re-sentenced within the next 60 days. A date for such re-sentencing shall be set by separate order. ***SEE ORDER***. Signed by Judge Larry J. McKinney on 9/16/2014.(JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ERNEST R. SNOW,
Petitioner,
vs.
USA,
Respondent.

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No. 1:13-cv-00534-LJM-DML
No. 1:09-cr-00087-LJM-KPF-1

ORDER ON PETITION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255
Petitioner Ernest R. Snow (“Petitioner Snow” or “Snow”) pled guilty to a felon in
possession charge on January 10, 2010, and was sentenced as an armed career criminal
under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). Petitioner Snow
asks this court to vacate, set aside, or correct his sentence alleging that his trial and
appellate counsel rendered ineffective assistance of counsel. Specifically, Petitioner
Snow asserts that both counsel failed to argue at sentencing and on appeal that one of
the underlying felonies that was used to support the Court’s determination that he was an
armed career offender was not a violent crime in violation of 18 U.S.C. 922(g)(1). He
alleges that such a failure violates the Strickland standards.
I. DISCUSSION
The standard for ineffective assistance of counsel first requires that Snow show
that “counsel’s representation fell below an objective standard of reasonableness.@
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Next, he must show that Athere
is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.@ Id. at 694. A court must indulge a strong

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presumption that counsel’s conduct fell within the wide range of reasonable professional
assistance or sound trial strategy. See id. at 668, 688–89. Judicial scrutiny of counsel’s
performance must be highly deferential and every effort must be made to eliminate the
distorting effects of hindsight. See id. at 689.
Further, Strickland requires that counsel=s performance be evaluated as a whole
rather than focus on a single failing or oversight. See Peoples v. United States, 403 F.3d
844, 848 (7th Cir. 2005). “It is essential to evaluate the entire course of the defense,
because the question is not whether the lawyer's work was error-free, or the best possible
approach, or even an average one.” Williams v. Lemmon, 557 F.3d 534, 538 (7th Cir.
2009). See also Balfour v. Haws, 892 F.2d 556, 562-63 (7th Cir. 1989) (noting that for
specific allegations of ineffective assistance courts must “weigh the overall quality of
representation provided to the defendant” and not individual shortcomings).
Among the three prior convictions that were used to support the conclusion that
the Snow was an armed career criminal was a conviction from the Hamilton County Ohio
Court of Common Pleas for Breaking and Entering, a felony of the fifth degree. In Ohio,
a fifth degree felony is punishable by a term of imprisonment of six to twelve months.
Ohio Rev. Code Ann. § 2929.14(A)(5).
The ACCA defines a violent felony as follows:
(B) the term “violent felony” means any crime punishable by imprisonment
for a term exceeding one year, or any act of juvenile delinquency involving
the use or carrying of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an adult, that—
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical
injury to another….

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18 U.S.C. § 924(e)(2)(B).
The conviction for an Ohio fifth degree felony, because it is not punishable for a
term exceeding one year, does not meet the definition of a violent felony and thus is
unavailable to be used to support a finding that Snow was an armed career criminal. The
failure to bring this to the sentencing court or the appellate court’s attention qualifies under
Strickland as ineffective assistance of counsel.
II. CONCLUSION
Petitioner Ernest R. Snow’s Motion to Vacate or Set Aside Sentence pursuant to
28 U.S.C. § 2255 is GRANTED. Judgment shall be entered accordingly. Petitioner
Ernest R. Snow’s Motion for Immediate Ruling is GRANTED to the extent it seeks an
expedited ruling, but is DENIED with respect to any other relief it may have sought. The
Court Orders that the Petitioner Ernest R. Snow be re-sentenced within the next 60 days.
A date for such re-sentencing shall be set by separate order.
IT IS SO ORDERED this 16th day of September, 2014.

Distribution:
Sara J. Varner
INDIANA FEDERAL COMMUNITY DEFENDERS
[e-mail]
Gerald A. Coraz
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

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LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana