Howard v. United States of America

Filing 17

MEMORANDUM and ORDER: The Court denies Howards motions 15 & 16 for reconsideration. See attached memorandum and order for details. A copy of this memorandum and order will be mailed by chambers to the pro se peititioner by regular mail. Ordered by Judge Frederic Block on 12/13/2012. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------x MEMORANDUM AND ORDER
ABDUL RAHIM HOWARD,
Case No. 11-CV-5208 (FB)
Petitioner,
-againstUNITED STATES OF AMERICA,
Respondent.
-------------------------------------------------------------x
Appearances:
For the Petitioner:
ABDUL RAHIM HOWARD, pro se
#72346-053
Metropolitan Detention Center
P.O. Box 329002
Brooklyn, NY 11232

For the Respondent:
LORETTA LYNCH, ESQ.
United States Attorney
Eastern District of New York
BY: JOHN DAVID BURETTA, ESQ.
JONATHAN E. GREEN, ESQ.
Assistant United States Attorneys
271 Cadman Plaza East
Brooklyn, NY 11201

BLOCK, Senior District Judge:
Petitioner Abdul Rahim Howard (“Howard”) seeks reconsideration of the
Court’s August 16, 2012 denial of his second motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. The Court previously denied Howard’s first § 2255
petition in its entirety, as well as Howard’s subsequent motion for reconsideration.
Howard advances three grounds for reconsideration of the denial of his latest
§ 2255 petition. First, he claims that the Court misconstrued his argument that the sentencing
court failed to follow the procedures set forth in 21 U.S.C. § 851(b), which requires that prior
to imposition of a sentence, a defendant be asked to affirm or deny whether he has been
previously convicted as set forth in the information. Second, Howard states that the Court

misunderstood his argument that the government was “vindictive” in filing a superseding
indictment shortly before trial with five additional counts. Finally, Howard contends that the
Court erred in misconstruing his argument that the Count Four conviction, for distribution
of narcotics near a playground, could not stand as § 841(b) does not call for aggregation of
drug quantities in substantive counts.
On reconsideration, Howard has failed to “show that any controlling authority
or facts have actually been overlooked . . . and which, had they been considered, might have
reasonably altered the result before the court.” See Thaler v. United States, 706 F. Supp. 2d 361,
374 (S.D.N.Y. 2010) (citations omitted) (providing the standard for a Ruly 59(e) motion to alter
or amend the judgment). Instead, he seeks to reargue claims that were previously made to
and rejected by this Court.

Accordingly, the Court denies Howard’s motion for

reconsideration.
SO ORDERED.
_________________________________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
December 13, 2012

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