Howard v. USA - 2255

Filing 2

MEMORANDUM AND ORDER (DECISION) denying 271 Amended Motion to Vacate (2255) as to David Howard (2). Signed by Judge Marvin J. Garbis on 3/9/2016. (dass, Deputy Clerk) (c/m 3/9/16-das)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA

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vs.

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DAVID HOWARD, ET AL.
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CRIMINAL NO. MJG-11-0494
(Civil Action No. MJG-14-2573)

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DECISION DENYING § 2255 MOTION
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].
denied the motion.

On January 22, 2013, the Court

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.

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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).
exceptions not here relevant,2

Moreover, subject to

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. 1281],3 a motion presenting contentions that he had not had the
effective assistance of counsel in regard to his pleading
guilty.

1
I.e. an intervening change in law or a showing of actual
innocence. Petitioner has not made a showing of actual
innocence.
2
I.e., a showing of actual innocence or cause and actual
prejudice. Petitioner has shown neither.
3
and his motion to dismiss the indictment [ECF No. 150].
3

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,

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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."
88, 694 (1984).

Strickland v. Washington, 466 U.S. 668, 687"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

4
Thus overcoming a presumption that counsel's conduct (i. e.
representation of the criminal defendant) was reasonable. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
5

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 were to be introduced as
admissible evidence.



Has a personal relationship with the prosecutor,
Mark Crooks, and ignored emails from Mr. Crooks
that clearly showed unethical practices and
methods being used by the prosecution.



Entertained and encouraged the use of threats,
coercion, and intimidation, to force me to sign a
guilty plea against my will.



Made post-plea admissions (on a recorded
telephone device) that he noticed things about my

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case that would now, in retrospect, compel him to
advise me differently.


Fully knowing that abundant reasonable cause
existed to show defendants possible incompetence,
failed to petition the court for a mental
evaluation.

See also the instant motion [ECF No. 271].
The Court conducted an evidentiary hearing, made
credibility determinations5

and found no "reason to doubt that

[Petitioner] had the close assistance of competent counsel.
Indeed two competent counsel who behaved competently." Tr. 49:711, Jan. 22, 2013, ECF No. 204.
As stated by the appellate court:
Howard contends that he did not have close
assistance of competent counsel. To prevail
on this factor, Howard must demonstrate "(1)
that his counsel's performance 'fell below
an objective standard of reasonableness' and
(2) that 'there [was] a reasonable
probability that, but for counsel's error,
he would not have pleaded guilty and would
have insisted on going to trial.'" United
States v. Bowman, 348 F.3d 408, 416 (4th
Cir. 2003). Under this standard, this
court's inquiry is limited to whether
Howard's counsel "was reasonable 'under
prevailing professional norms,' and in light
of the circumstances." Id.

5
As stated by Petitioner's attorney: "[In regard to] the
last [Moore] factor, actually, it's not the last factor, the
fourth one, close assistance of competence of counsel, that's
one where there's a considerable degree of difference between
what my client said and what Mr. Curlett said. It's a matter in
which the Court has to make its own credibility determinations."
Tr. 27:1-6, Jan. 22, 2013, ECF No. 204.
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We find that the district court's
conclusions that Howard's attorney acted
reasonably were not an abuse of discretion.
The court accepted the attorney's testimony
that, as there was no chance of success at
trial, he instead attempted (and succeeded)
in negotiating a beneficial plea agreement.
Howard presented no evidence in district
court (or on appeal) showing that he had a
reasonable chance for success at trial.
While Howard further alleges that his
attorney improperly assumed his guilt and
failed to properly analyze the consequences
of filing a motion to suppress, Howard
offers no analysis of the evidence showing
that his attorney's findings were erroneous.
549 F. App'x at 168.

2.

Mr. Crowe

Petitioner claims that Mr. Crowe was ineffective because he
failed to argue medical issues in the withdrawal motion hearing.
As stated by the appellate court:
Howard claims 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. This claim was waived by Howard at
his hearing on his motion to withdraw when
he explicitly stated that he was not
pursuing it. This statement followed the
court's request that everything on which
Howard was relying should be examined and
argued so that a proper record of his pro se
allegations could be made. Howard fails to
even address the waiver on appeal and,
accordingly, provides no basis to ignore it.
Id. at 167.

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Even if the contention had not been withdrawn, such an
argument would not have resulted in Petitioner's being allowed
to withdraw his guilty plea.
Petitioner also makes the same claim as to Mr. Crowe, that
he did as to Mr. Curlett; that is, that Mr. Crowe failed to
investigate defense witnesses.

The claim has no more merit as

to Mr. Crowe than it did as to Mr. Curlett.

There has been no

showing of the existence of defense witnesses whose testimony
would, to any degree of reasonable possibility, result in the
acquittal of Petitioner at trial.

3.

Mr. Hart

Petitioner claims that his appellate attorney, Dennis M.
Hart, Esquire, failed to provide him the effective assistance of
counsel.

The specific claim is that Mr. Hart failed to present

Petitioner's Rule 11(b)(2) issues in the initial appellate
brief.

Thus, according to Petitioner, the appellate court did

not consider these issues.
The Court addresses herein, Petitioner's Rule 11(b)(2)
contentions and finds them to be meritless.

Accordingly, even

if Mr. Hart would have included them in his initial brief,
Petitioner has not shown that the result of the appeal would
have been any different.

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C.

Rule 11 Proceedings
1.

The Plea was Voluntary

Petitioner contends that the Rule 11 proceeding was
inadequate to warrant the Court's finding that his plea of
guilty was voluntary.

The Government contends that Petitioner's

Rule 11 contentions were resolved on direct appeal.

The Court

will assume, without finding, that the issues – or some of them
– were not resolved on direct appeal.
Petitioner was expressly warned of the importance of a
guilty plea and that he could consult with counsel or stop the
proceeding at any time. Tr. 3:21-4:6, Sep. 6, 2012, ECF No. 1381.

He was reminded that he was testifying under oath and that

he could ask his attorney for advice at any time. Id. at 4:8-11.
He was asked about medication taken and stated he was taking
Neurontin, that it did not affect his alertness and his counsel
stated that there had been no communication problems. Id. at
5:11-19.
Petitioner expressly confirmed his satisfaction with
counsel:
THE COURT: Okay. Have you had a chance to
discuss this case fully with your attorney?
THE DEFENDANT: Yes.
THE COURT: Are you satisfied with his
services?
THE DEFENDANT: Yes.

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Id. at 8:18-22.
Petitioner was informed of his rights. Id. at 9:11-11:7.
These included the right to proceed to trial even if he had in
fact committed the crime because "you're not guilty here unless
the Government can prove that you committed the crime. So, if
you pleaded not guilty, there would be a trial." Id. at 9:15-17.
After being informed of his rights, Petitioner confirmed
that he wished to plead guilty.
THE COURT: [D]o you understand you're giving
up all those rights if we go into this plea
agreement?
THE DEFENDANT: Yes.
THE COURT: And that's what you wish to do?
THE DEFENDANT: Yes.
Id. at 10:22-11:1.
Petitioner confirmed that he understood that he was
convicting himself of a felony, that "it's a serious crime. No
guns. It's a bad thing on your record."

Id. at 11:3-7.

The effect of the plea agreement was clearly stated:
THE COURT: . . . It's not complicated in the sense that
you're agreeing -- I have to find that this is
appropriate after considering the presentence report, but
you're agreeing to a sentence of 384 months, which is
mandatory, and one day, where there is discretion, so
it's 384 months and one day. Do you understand that?
THE DEFENDANT: Yes.
Id. at 12:16-22.

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THE COURT: . . . Do you agree that there has been no
promise made to you except what we just talked about?
That is, you're going to plead guilty to these counts.
This is the sentence you're going to get. That's it,
correct?
THE DEFENDANT: Correct.
Id. at 13:9-13.
Petitioner unequivocally admitted guilt:
THE COURT: Okay. Did you, in fact, commit
the crimes that are charged?
THE DEFENDANT: Yes.
Id. at 13:14-16.
Petitioner confirmed that he had no questions and wished to
plead guilty. Id. at 20:24-21:3.
The Court incorporates herein the reasons for denying the
motion seeking leave to withdraw stated on the record of
proceedings of January 22, 2013. Tr. 47:16–56:9, Jan. 22, 2013,
ECF No. 204.
The Court reiterates its finding at the Rule 11 proceeding
that Petitioner properly and effectively pleaded guilty to the
charges at issue.

As then stated:

I find that you know your rights,
you're well represented, you have made a
decision that's in your best interests, and
the plea is made with -- voluntarily
and with knowledge of your rights;
therefore, it's accepted.
Tr. 21:4-7, Sep. 6, 2012, ECF No. 138-1.

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2.

The "Penalties of Perjury Claim

Petitioner claims that he should have been warned that
false testimony could result in a perjury charge.

The Court

finds that there was substantial compliance with Rule
11(a)(1)(A)6 without the use of the word "perjury."

Petitioner

was given the oath, swore to tell the truth and was told that he
was "testifying under oath, which is serious." Tr. 4:8, Sep. 6,
2012, ECF No. 138-1.
By no means did Petitioner suffer prejudice at all, much
less of constitutional magnitude, by virtue of the omission of
the word "perjury" in the warning given to him.

See United

States v. White, 572 F. 2d 1007, 1009 (4th Cir. 1978).

Indeed,

it appears that the only conceivable prejudice that could arise
would be if Petitioner were prosecuted for perjury for a false
statement made in the Ryle 11 proceeding.

Even then, he could

seek to use – in some fashion – the absence of express reference
to "perjury" as a defense or mitigating factor.

3.

The "Civil Rights" Claim

Petitioner contends that he was not advised that, by virtue
of his conviction, he would suffer a loss of civil rights.
Petitioner was advised, however, that he was pleading guilty to

All Rule references are to the Federal Rules of Criminal
Procedure.
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a felony.

Tr. 11:3-4, Sep. 6, 2012, ECF No. 138-1.

The Court

stated: "It's a serious crime. No guns. It's a bad thing on your
record."

Id. at 11:6-7.

The Court finds that there was no need for the use of the
words "civil rights."

Petitioner was told about, and was aware,

of the consequences of a felony conviction.
Moreover, since Petitioner was already a convicted felon,
there would have been no loss of civil rights resulting from
another felony conviction.
There was no prejudice to Petitioner by virtue of the
omission of the words "civil rights" from the Court's statement.

D.

The Alleyne Issue

Petitioner claims that he was improperly convicted of
brandishing a firearm because there was no jury finding of
guilt, relying upon Alleyne v. United States, ___ U.S. ___, 133
S. Ct. 2151 (2013).

Alleyne held that a jury finding of

brandishing a firearm is required if in the sentencing context,
the finding would be used to increase ae mandatory minimum
sentence. Id. at 2162.

However, in the instant case, Petitioner

pleaded guilty to the offense, thus waiving his right to a trial
by jury.

Moreover, Petitioner signed the plea agreement and

stipulated to facts that established the brandishing charge.

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E.

The Two § 924(c) Convictions

The Superseding Indictment [ECF No. 20] charged Petitioner
with violations of 18 U.S.C. § 924(c) in Count Ten and Count
Thirteen.

The heading of Count Thirteen, by virtue of a

typographical error, labeled the charge therein as "Hobbs Act
Robbery."

Id. at 19.

However, the text of the Count referred

to the use, etc. of a firearm in furtherance of a crime of
violence and stated that the charge was brought under 18 U.S.C.
§§ 924(c)(1)(A)(i)and (ii).
Furthermore, the plea agreement identified Count 13 as a
charge under § 924(c) and, at the Rule 11 proceeding, Petitioner
was specifically informed that he was pleading to a §
924(c)(1)(A) charge.
THE COURT: . . . You received a copy of the
Indictment that charges you in this case.
I'm going to ask Mr. Crooks or Mr. Budlow to
briefly describe the charges you're pleading
guilty to.
MR. CROOKS: The three charges -- that is,
Counts 1,10, and 13 -- are as follows: Count
1 is conspiracy to interfere with commerce
by robbery -- that's in violation of 18 U.S.
Code § 1951, and Counts 10 and 13 are both
the use and the brandish of a firearm in
furtherance of a crime of violence, and
that's in violation of 18 U.S. Code
§ 924(c)(1)(A).
Tr. 5:21-6:5, Sep. 6, 2012, ECF No. 138-1.
The typographical error in the Superseding Indictment did
not at all affect Petitioner's knowledge of the charges against

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him nor adversely affect any substantial rights of his.

The

indictment adequately set forth the charge against him in Count
13.

F.

The Unrelated D.C. Robbery

Petitioner asserts that he was "convicted" of an unrelated
robbery in Washington, D.C.

He was not.

Moreover, that

robbery was not considered in regard to his sentence.
The Superseding Indictment [ECF No. 20] included in
paragraph 14 a reference to an overt act consisting of a May 22,
2008 robbery in Washington, D.C. committed by Defendants Wilson
and McCullum "and other co-conspirators."

Id. at 4.

Petitioner

was not accused of participating in that robbery, did not admit
that he participated in it, and the robbery was not a factor in
regard to his sentence.

III. CONCLUSION
For the foregoing reasons:
1.

Petitioner's Amended Motion to Vacate, Set Aside,
or Correct Sentence [Document 271] is DENIED.

2.

Judgment shall be entered by separate Order.

SO ORDERED, on Wednesday, March 9, 2016.

/s/__________
Marvin J. Garbis
United States District Judge

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