Howard v. United States of America

Filing 24

MEMORANDUM AND ORDER: All of Howards pending motions are denied. Because he has not made a substantial showing of a denial of his constitutional rights, a certificate of appealability will not issue. See 28 U.S.C. § 2253. The Clerk is directed to docket this memorandum and order in each of the cases listed in the caption. A copy of this decision will be mailed to the pro se petitioner from chambers and by regular mail. Ordered by Judge Frederic Block on 11/25/2013. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------x
ABDUL RAHIM HOWARD,
Movant,
-againstUNITED STATES OF AMERICA,
Respondent.
--------------------------------------------------------x
Appearances:
For the Movant:
ABDUL RAHIM HOWARD, pro se
#72346-053
MDC Brooklyn
P.O. Box 329002
Brooklyn, New York 11232

MEMORANDUM AND ORDER
Case Nos.
04-CR-942 (FB)
10-CV-2775 (FB)
11-CV-5208 (FB)
13-CV-4207 (FB)

For the Respondent:
LORETTA E. LYNCH, ESQ.
United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201

BLOCK, Senior District Judge:
Abdul Rahim Howard is currently incarcerated pursuant to the Court’s
judgment sentencing him principally to 240 months’ imprisonment on convictions for
conspiracy to distribute narcotics, management of a drug-related premises and distribution
of narcotics near a playground. The judgment was affirmed on appeal. See United States
v. Ramos, 314 F. App’x 344 (2d Cir. Nov. 20, 2008). On August 16, 2012, the Court denied
Howard’s motion for relief under 28 U.S.C. § 2555 and, on December 13, 2012, denied his
motion to reconsider the denial.
Howard now requests three things. First, he asks the Court to adjudicate
claims overlooked in the Court’s August 16th order. Second, he asks the Court to vacate
his convictions under the Supreme Court’s recent decision in Alleyne v. United States, 133

S. Ct. 2151 (2013). Third, he asks to be resentenced under retroactive amendments to the
Sentencing Guidelines.
I
Howard first moved for relief under § 2255 on June 11, 2010. The Court
denied the motion, and Howard appealed. While the appeal was pending, Howard filed
a second § 2255 motion on October 21, 2011. The Second Circuit concluded that the
October 2011 motion was not a “second or successive” motion subject to the “preclearance”
requirement of 28 U.S.C. § 2255(h), and instead remanded “for whatever further action the
district court finds appropriate.” Mandate (Apr. 18, 2012) (internal quotation marks
omitted).
On remand, the Court addressed the two claims raised in Howard’s October
2011 motion, as well as an additional claim raised in a supplemental submission filed on
April 25, 2012. As noted, the Court entered an order rejecting those claims (and reaffirming
its prior denial of the June 2010 motion) on August 16, 2012.
Unbeknownst to the Court, Howard had raised three additional claims in
various submissions.1 Although he moved for reconsideration, he argued only that the
Court had misconstrued the claims addressed in the August 16th order; he did not call the
Court’s attention to any overlooked claims. As noted, the Court denied reconsideration on
December 13, 2012.

1

It appears that some of Howard’s submissions were inadvertently docketed under
the case number assigned to his June 2010 motion.
2

On December 31, 2012, Howard—with the informal assistance of
counsel—asked the Court to “address [the] open issues by means of a formal decision.”
Letter from Mitchell A. Golub, Esq. (Dec. 31, 2012). He repeated the request pro se on May
6, 2013, and again on August 19, 2013.
Entry of a final judgment or order drastically limits a district court’s
authority. Rule 59(e) does, of course, empower a court to “alter or amend” its decision in
response to a timely motion; however, it does not authorize successive motions. See Glinka
v. Maytag Corp., 90 F.3d 72, 74 (2d Cir. 1996) (“Allowing subsequent motions . . . would
encourage frivolous motions and undermine a fundamental canon of our legal system, to
promote the finality of judgments.”).
Another possibility is Rule 60(b), which authorizes a court to modify a
judgment for certain specified reasons. One such reason is “mistake,” Fed. R. Civ. P.
60(b)(1), which the Second Circuit has long construed to include mistakes made by the
court. See Tarkington v. United States Lines Co., 222 F.2d 358, 360 (2d Cir. 1955). Thus, the
Court’s inadvertent failure to address all of Howard’s claims can be remedied by treating
his request as a motion for relief from judgment under Rule 60(b)(1).2
Each of the overlooked claims involves the Sixth Amendment right to the
effective assistance of counsel. Thus, Howard must satisfy the familiar standards of

2

“[A] motion for relief from . . . judicial mistakes under Rule 60(b)(1) may not be
made after the time for appeal has elapsed.” International Controls Corp. v. Vesco, 556 F.2d
665, 670 (2d Cir. 1977). Howard brought the oversight to the Court’s attention within 60
days of the order denying rehearing. See Fed. R. App. P. 4(a)(4)(A)(iv) (providing that time
to appeal begins to run upon disposition of timely motion to alter or amend judgment).
3

Strickland v. Washington, 466 U.S. 668 (1984), “(1) that his attorney’s performance fell below
an objective standard of reasonableness, and (2) that as a result he suffered prejudice.”
United States v. Jones, 482 F.3d 60, 76 (2d Cir. 2006) (citing Strickland, 466 U.S. at 668, 687).
For the following reasons, the Court concludes that Howard cannot satisfy those standards.
A. Prosecutorial Misconduct
Howard’s first claim is that his trial and appellate counsel provided
ineffective assistance by failing to raise a claim that the government presented perjured
testimony to the grand jury. According to Howard, an agent of the Drug Enforcement
Administration told the grand jury that Howard was a manager of a New York drug
operation as of October 2004. At trial, by contrast, the same agent testified that a
confidential informant had told him that Howard had moved to North Carolina in
September of that year.
Claims of irregularities in grand jury proceedings are subject to harmlesserror analysis. See Bank of Nova Scotia v. United States, 487 U.S. 250, 255 (1988). “Under this
standard, dismissal of the indictment is appropriate only if it is established that the
violation substantially influenced the grand jury’s decision to indict, or if there is grave
doubt that the decision to indict was free from the substantial influence of such violations.
See id. at 256 (citation and internal quotation marks omitted); see also Weichert v. United
States, 458 F. Supp. 2d 57, 62 n.2 (N.D.N.Y. 2006) (applying general rule to claim of
perjury).3
3

For certain violations not at issue here—most notably, racial discrimination in the
selection of the grand jury—prejudice is presumed. See Bank of Nova Scotia, 487 U.S. at 2564

The charges against Howard alleged that he was involved in the drug
operation between April 2002 and November 2004. Given the extensive testimony
regarding his prolonged involvement with the operation, there is no reasonable probability
that the grand jury’s decision to indict hinged on his activities at the very end of that
period.

The Court is particularly certain of that conclusion given that the petty

jury—which heard the testimony that Howard had left the operation in September
2004—nevertheless found him guilty. See United States v. Mechanik, 475 U.S. 66, 73 (1986)
(“[T]he petit jury’s verdict rendered harmless any conceivable error in the charging
decision that might have flowed from the violation.”). “[F]ailure to make a meritless
argument does not amount to ineffective assistance.” United States v. Regalado, 518 F.3d 143,
149 n.3 (2d Cir. 2008) (citation and internal quotation marks omitted).
B. Speedy Trial
Howard next argues that his counsel was ineffective for failing to move to
dismiss the indictment for a speedy trial violation. He “estimates” that 160 non-excluded
days elapsed between his initial arraignment and the start of trial. The Court’s own
calculations, based on minute entries on the docket, reflect that 272 non-excluded days
elapsed. The Court suspects that many more days were excluded, but inadvertently
omitted from the minute entries. The transcripts of the various status conferences between
arraignment and trial are not in the record, and would be difficult to obtain at this point.

57 (citing Vasquez v. Hillery, 474 U.S. 254 (1986)).
5

In any event, the only plausible outcome of a speedy trial challenge, had it
been raised, would have been a dismissal without prejudice. See 18 U.S.C. § 3162(a)(2) (“In
determining whether to dismiss the case with or without prejudice, the court shall consider,
among others, each of the following factors: the seriousness of the offense; the facts and
circumstances of the case which led to the dismissal; and the impact of a reprosecution on
. . . the administration of justice.”) That result does not constitute prejudice under
Strickland. See Patiwana v. United States, 928 F. Supp. 226, 241 (E.D.N.Y. 1996), aff’d, 173 F.3d
845 (2d Cir. 1999); accord United States v. Rushin, 642 F.3d 1299, 1309-10 (10th Cir. 2011) (“In
no meaningful sense has Defendant established a reasonable probability that the result or
outcome of the proceeding to which he was subjected would have differed if the indictment
on which he stands convicted had been dismissed without prejudice.” (internal quotation
marks omitted)).4
C. Sufficiency of the Evidence on Count Four
Count Four of the Superseding Indicment charged Howard with drug
distribution within 1000 feet of a playground, in violation of 21 U.S.C. § 860(a). Howard
argues that his counsel was ineffective for failing to challenge the sufficiency of the
government’s evidence (1) regarding the distance between the playground and the drug-

4

The Supreme Court’s holding that failure to make the requisite findings for a
speedy trial exclusion is per se reversible error, see Zedner v. United States, 547 U.S. 489, 508
(2006), does not alter the analysis. Zedner involved a speedy trial challenge raised on direct
appeal, see id. at 496-97, and expressly noted that dismissal without prejudice was a
possible remedy. See id. 509 (“The sanction for a violation of the [Speedy Trial] Act is
dismissal, but we leave it to the District Court to determine in the first instance whether
dismissal should be with or without prejudice.”).
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distribution site, and (2) regarding the statutory definition of “playground.” See id. §
860(e)(1) (“The term ‘playground’ means any outdoor facility . . . containing three or more
separate apparatus intended for the recreation of children including, but not limited to,
sliding boards, swingsets, and teeterboards.”).
“A reviewing court must indulge a strong presumption that counsel’s
[performance] falls within the wide range of reasonably professional assistance.” United
States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004). The presumption is particularly apt here.
Howard’s focus on two elements of § 860(a) ignores another: distribution of drugs. Other
charges under 21 U.S.C. § 841 rested on the same premise. The minimum penalty for a
violation of § 860(a) is one year of imprisonment, “[e]xcept to the extent a greater minimum
sentence is otherwise provided by section 841(b).” (emphasis added).
In other words, the driving force behind the prosecution was Howard’s
involvement in a drug-distribution operation. It was not unreasonable for counsel to
mount a defense denying that involvement altogether. Adding arguments addressed to
statutory niceties would have risked the appearance of conceding Howard’s involvement
with absolutely no countervailing effect on Howard’s likely sentence.

In those

circumstances, the Court easily concludes that counsel’s actions fell “within the wide range
of reasonably professional assistance.” Gaskin, 364 F.3d at 468.
II
In June of this year, the Supreme Court held that “any fact that increases the
mandatory minimum is an ‘element’ that must be submitted to the jury,” and overruled
its prior precedent to the contrary. Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013)
7

(overruling Harris v. United States, 536 U.S. 545 (2002)). One month later, Howard—who
was sentenced to a mandatory minimum set forth in 21 U.S.C. § 841(b)— filed a § 2255
motion claiming that Alleyne requires that his convictions and sentence be vacated.5
In United States v. Redd, ____ F.3d ____, 2013 WL 5911428 (2d Cir. Nov. 5,
2013), the Second Circuit held that “Alleyne did not announce a new rule of law made
retroactive on collateral review.” Id. at ____, 2013 WL 5911428, at *3. Therefore, it is not
a ground for relief under § 2255.
III
In 2010, Congress enacted the Fair Sentencing Act (“FSA”), which amended
21 U.S.C. § 841(b) to increase the amount of crack cocaine necessary to trigger the statute’s
mandatory minimum sentences. See Pub. L. 111-220, 124 Stat. 2372 (Aug. 3, 2010), § 2
(amending 21 U.S.C. §§ 841(b)(1)(A)(iii), 841(b)(1)(B)(iii)). It further directed the U.S.
Sentencing Commission to amend the base offense levels for Guideline § 2D1.1 to comport
with the statutory changes. See id. § 8. The Commission responded by promulgating
Amendment 750.

5

Like his October 2011 motion, Howard’s July 2013 motion is not subject to the
“preclearance” requirement of § 2255(h). In the former case, the pendency of an appeal
made the requirement inapplicable. See Whab v. United States, 408 F.3d 116, 118 (2d Cir.
2005) (“[S]o long as appellate proceedings following the district court’s dismissal of the
initial petition remain pending when a subsequent petition is filed, the subsequent petition
does not come within [§ 2255(h)’s] gatekeeping provisions for ‘second or successive’
petitions.”). In the latter case, the Court had not yet completely disposed of all claims
when the July 2013 motion was filed. See Ching v. United States, 298 F.3d 174, 177 (2d Cir.
2002) (“[I]n general, when a § 2255 motion is filed before adjudication of an initial § 2255
motion is complete, the district court should construe the second § 2255 motion as a motion
to amend the pending § 2255 motion.”).
8

The guideline amendment took effect on November 1, 2011, but was explicitly
made retroactive pursuant to the Commission’s authority under 28 U.S.C. § 994(u). By
contrast, the statutory amendment is not retroactive. See United States v. Diaz, 627 F.3d 930,
931 (2d Cir. 2010) (“[T]he FSA contains no express statement that it is intended to have
retroactive effect nor can we infer such intent from its language.”). In Diaz, the Second
Circuit held that the statutory amendment “could not operate to reduce Appellant’s
sentence, since he was convicted and sentenced before the FSA was signed into law.” Id.
Howard has twice moved to be resentenced under Amendment 750, and the
Court has twice denied that request on the ground that Howard’s sentence was based on
the statutory mandatory minimum, not the Guidelines.

By way of motion for

reconsideration, Howard argues that not applying the statutory amendment retroactively
constitutes intentional race discrimination in violation of the equal protection principles.
His argument is based on United States v. Blewett, 719 F.3d 482 (6th Cir. 2013), in which a
panel of the Sixth Circuit held that “the intentional maintenance of [racially] discriminatory
sentences is a denial of equal protection.” Id. at 489. However, the panel opinion has been
vacated pending en banc review. See United States v. Blewett, Case Nos. 12–5226, 12–5582
(6th Cir. order dated July 11, 2013). In any event, the Second Circuit held in United States
v. Williams, 347 F. App’x 710 (2d Cir. 2009), that the pre-amendment mandatory minimums
for crack cocaine did not violate equal protection. See id. at 711. There is simply no reason
to believe that Congress decided not to give those already sentenced the benefit of
amendment based on the racial composition of that group. Accord United States v. Bigesby,
685 F.3d 1060, 1066 (D.C. Cir. 2012) (“[A]ny [equal protection] concerns are resolved by
9

Congress’ rational basis for limiting the [amendment’s] retroactive effect—its interest in the
finality of sentences.” (citation and internal quotation marks omitted)).”
IV
All of Howard’s pending motions are denied. Because he has not made a
substantial showing of a denial of his constitutional rights, a certificate of appealability will
not issue. See 28 U.S.C. § 2253. The Clerk is directed to docket this memorandum and
order in each of the cases listed in the caption.
SO ORDERED.

/S/ Frederic Block
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
November 25, 2013

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