HOWARD v. USA

Filing 3

ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Donetta W. Ambrose on 5/12/17. (ask)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES

)
) CR 13-135
) CV 15-1603

v.
CHARLES HOWARD, III

OPINION AND ORDER
SYNOPSIS
In this action, Defendant pleaded guilty to two counts, one of violating 18 U.S.C. §§
922(g)(1) and 924(e), and one of violating 21 U.S.C. §841(a)(1). On December 12, 2014, the
Court sentenced him to concurrent terms of imprisonment of 180 months, followed by a term of
supervised release. Defendant has filed a pro se Motion to Vacate pursuant to 28 U.S.C. § 2255.1
For the following reasons, Defendant’s Motion will be denied.
OPINION
I. LEGAL STANDARDS
Relief is available under Section 2255 only under exceptional circumstances, when the
claimed errors of law are "a fundamental defect which inherently results in a complete
miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair
procedure." Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962). A
district court need not hold an evidentiary hearing on a Section 2255 motion if the motion, files,
and records show conclusively that the defendant is not entitled to relief. United States v. Ritter,
93 Fed. Appx. 402 (3d Cir. 2004). “To progress to an evidentiary hearing, a habeas petitioner
must do more than proffer gauzy generalities or drop self-serving hints that a constitutional

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This matter was transferred to my docket on December 1, 2016.

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violation lurks in the wings”; as a result, vague and conclusory allegations do not justify a
hearing. David v. United States, 134 F.3d 470, 478 (1st Cir. 1998). Further, pro se pleadings
are to be liberally construed, and I have considered Defendant’s submissions accordingly. See
United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007). In this case, a hearing is unnecessary,
and the Motion will be disposed of on the record.
II. DEFENDANT’S MOTION
Defendant contends that counsel was ineffective in several respects, related to failures to
challenge searches of his home and vehicle and to properly deal with Defendant’s guilty plea,
and for failing to challenge ACCA enhancements. The Government argues that Defendant’s
Motion is meritless.2
In the context of an ineffective assistance of counsel claim, a court should be "highly
deferential" when evaluating an attorney's conduct; there is a "strong presumption" that the
attorney's performance was reasonable. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). "It is...only the rare claim of ineffectiveness of counsel that
should succeed under the properly deferential standard to be applied in scrutinizing counsel's
performance." United States v. Gray, 878 F. 2d 702, 711 (3d Cir. 1989).
To demonstrate that counsel was ineffective, a defendant must show that counsel's
performance fell below "the wide range of professionally competent assistance" and also that the
deficient conduct prejudiced defendant. Strickland, 466 U.S. at 687. Counsel's conduct must be
assessed according to the facts of the particular case, viewed as of the time of counsel's conduct.
Id. at 689. Under the prejudice prong, the pertinent question is "whether there is a reasonable
probability that, absent the errors," the result would have been different. Id. at 695; see also
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The Government suggests that the appellate waiver in Defendant’s plea agreement functions, essentially, as a
waiver of his collateral attack rights. I have previously rejected this argument, and do so again now. United States
v. Anker, No. 16-420, 2016 U.S. Dist. LEXIS 113476, at *3 (W.D. Pa. Aug. 25, 2016).

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Gray, 878 F.2d at 709-13. The prejudice prong of Strickland rests on "whether counsel's deficient
performance renders the result of the . . . proceeding fundamentally unfair," or strips the
defendant of a "substantive or procedural right to which the law entitles him." Id. at 700.
"It is… only the rare claim of ineffectiveness of counsel that should succeed under the
properly deferential standard to be applied in scrutinizing counsel's performance." Gray, 878 F.
2d at 711. Accordingly, a guilty plea may be withdrawn based on ineffective assistance of
counsel only if "(1) the defendant shows that his attorney's advice was under all the
circumstances unreasonable under prevailing professional norms, and (2) the defendant shows
that he suffered 'sufficient prejudice' from his counsel's errors." United States v. Maynard, 152
F. App’x 191 (3d Cir. 2005). Moreover, counsel is not ineffective for failing to raise meritless
claims. See Parrish v. Fulcomer, 150 F.3d 326, 328 (3d Cir. 1998). Consistent with these
principles, when a client is presented with a plea, an attorney’s advice “need not be perfect, but it
must be reasonably competent. His advice should permit the accused to make an informed and
conscious choice." Herring v. Estelle, 491 F.2d 125, 128 (5th Cir. 1974). (citations and internal
quotation marks omitted). I am mindful, too, of the "fundamental interest in the finality of guilty
pleas." Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).
In this context, I note that "the representations of the defendant, his lawyer, and the
prosecutor at [a plea] hearing, as well as any findings made by the judge accepting the plea,
constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in
open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 73-74, 97
S. Ct. 1621, 52 L. Ed. 2d 136 (1977).

“A plea of guilty is a statement under oath, not a stopgap

option to be discarded when it is no longer useful.” United States v. Ho-Man Lee, No. 13-29,
2015 U.S. Dist. LEXIS 56138, at *33 (D.N.J. Apr. 28, 2015).

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1. ACCA Enhancement3
Defendant received a mandatory minimum sentence, pursuant to his Rule 11(c)(1)(c)
agreement and Section 924(e), of 180 months, or fifteen years. He avers that the predicate
crimes relied on therefor are, for various reasons, invalid; counsel, he contends, was ineffective
for failing to mount a challenge to those predicate offenses.
Section 924(e) defines the term “serious drug offense” to include the following:
[A]n offense under State law, involving manufacturing, distributing, or possessing
with intent to manufacture or distribute, a controlled substance (as defined in
section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a
maximum term of imprisonment of ten years or more is prescribed by law…

18 U.S.C. § 924(e)(2)(A).
The categorical/modified categorical inquiry is applicable to a determination of whether
predicate offenses qualify as ACCA “serious drug offenses.” United States v. Somerville, 618 F.
App’x 69, 71 (W.D. Pa. 2015). Moreover, the statute of conviction at issue here, 35 Pa. Cons.
Stat. § 780-113(a)(30), is divisible as to both conduct and controlled substance. See, e.g., United
States v. Henderson, 841 F. 3d 623, 629 n. 5 (3d Cir. 2015). Therefore, documents approved in
Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005), may be used
to determine whether a defendant's prior convictions under Section 780-113(a)(30) fall within
the ACCA's definition of "serious drug offense." Id. at 142. A presentence report (“PSR”) can
be a Shepard document when the defendant does not object to the factual account of a crime
therein. United States v. Siegel, 477 F.3d 87, 93 (3d Cir. 2007). In addition, there can be no
dispute that a charging instrument is properly considered. United States v. Jackson, 2016 U.S.
Dist. LEXIS 160758 (W.D. Pa. Nov. 18, 2016).
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Contrary to the Government’s suggestion, Defendant’s plea agreement does not necessarily undermine his Johnson
argument. See United States v. Wolf, No. 4-347, 2017 U.S. Dist. LEXIS 25969, at *14 n. 3 (M.D. Pa. Feb. 24,
2017) (collecting cases).

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It is clear that a conviction under 35 Pa.C.S. § 780-113(a)(3) can serve as an ACCA
predicate, if the controlled substance involved carries a maximum sentence of at least ten years.
United States v. Zareck, 662 F. App’x 110 (3d Cir. 2016). Possession with intent to deliver
cocaine, and delivery of cocaine, are properly characterized as “serious drug offenses” under
ACCA. United States v. Al-Akili, 578 F. App’x 107, 109 (3d Cir. 2014); United States v.
Chambers, 597 F. App’x 707, 712 (3d Cir. 2015).
In this case, the PSR indicates that the suggested ACCA enhancement was based on four
prior convictions for state drug offenses. The PSR recited facts for each such conviction,
indicating that crack cocaine was involved in each. The Court provided the opportunity to object
to the PSR, and Defendant raised no objection. The Government has supplied state court
information filed in docket Nos. 2000-12144, 2001-10748, and 2007-671, as referenced in the
PSR. In each, the information charges Defendant with violations of 35 P.S. § 780-113(a)(30),
and specifies cocaine as the controlled substance involved.4 Accordingly, Defendant’s ACCA
sentence was based on sufficient predicates. Counsel was not ineffective for failing to challenge
the enhancement, and there is no reasonable probability that the outcome would have differed
had counsel raised on objection.
2. Remaining Issues
Next, Defendant contends that counsel was ineffective in various respects, such as when
he failed to challenge searches of a vehicle and Defendant’s residence, on various grounds; failed
to address the lack of Miranda warnings; failed to bring forth certain witnesses; and misguided
him into an uninformed plea. As to the latter, Defendant appears to suggest that he believed he
was pleading to all of the charges, but only plead to some. Although the details of each

4

In the information at docket number 2001-7339, no controlled substance is specified.

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contention are not fully set forth here, the Court has reviewed the facts and argument presented
by both Defendant and the Government, alongside the entire record and applicable law.
Here, Defendant pleaded guilty pursuant to a Rule 11(c)(1)(C) agreement, and the record
reflects that the Government, in exchange for Defendant’s agreement, declined to pursue an
additional firearm charge under Section 924(c). The PSR’s factual account of the offense
reflects that Defendant was Mirandized. Defendant offered no objection to the PSR. At
Defendant’s plea hearing, the following exchanges occurred:
Court: What made you decide to plead guilty, Mr. Howard?
Defendant: I just wanted to take responsibility for my crime.
Court: You’re admitting that you had possession of the gun, the one referred to in the first
count of the indictment?
Defendant: Yes.
Court: And the second, and also the count of the information, and you’re admitting that
you did possess the cocaine, the crack?
Defendant: Yes.
****
Court: Has he made confessions or admissions to the police or other representatives of
the government concerning this matter…?
Defense counsel: Yes, there were post-arrest statements.
Court: If for any reason you feel any confession or statement you made was not freely
and voluntarily made, you are entitled to have an evidentiary hearing or what we
sometimes call a suppression hearing prior to trial. They have me determine if the
confession or admission or statement was freely and voluntarily made. Would you want
me to conduct a hearing like that?
Defendant: No.

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Also at the Defendant’s plea hearing, the Government read the terms of the parties’
agreement into the record. The Court asked Defendant if the reading was consistent with his
understanding of the agreement, and Defendant responded in the affirmative. The Government
then narrated the facts that it intended to prove at trial. The Court then asked Defendant about
the Government’s recitation:
Court: Is that a pretty good rendition of what happened here, Mr. Howard?
Defendant: Yes.
Defendant and his counsel signed and dated the plea letter. The following language
appears directly above Defendant’s signature:
I have received this letter from my attorney…have read it and discussed it with him, and I
hereby accept it and acknowledge that it fully sets forth my agreement with the Office of
the United States Attorney for the Western District of Pennsylvania. …

It is wholly unclear how the plea negotiations or counsel’s approach to witnesses
prejudiced Defendant, or how the outcome of the proceeding would have been different had
counsel acted differently. Indeed, it is unclear precisely how counsel is alleged to have failed in
these respects. Defendant’s general, bare contentions, such as that counsel “misguided him into
making an unintelligent and uninformed plea for part of the charges were [sic] I believed I plead
to all” does not provide sufficient foundation for a finding of either ineffectiveness or prejudice
under the circumstances. Given the entirety of the record, there are no grounds for concluding
that counsel’s conduct was inadequate. With regard to the alleged Fourth Amendment
violations, the facts presented do not demonstrate that counsel’s conduct fell below an objective
standard of reasonableness, and there is no reasonable probability that a challenge would have

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changed the outcome of the proceedings. Overall, Defendant has not demonstrated that
counsel’s conduct failed to meet the standard imposed by Strickland.
III. CERTIFICATE OF APPEALABILITY
Under 28 U.S.C.§ 2253(c)(2), a "certificate of appealability may issue only if the applicant
has made a substantial showing of the denial of a constitutional right." For the reasons stated
supra, Defendant has not made the required showing. Therefore, a certificate of appealability will
not issue.
CONCLUSION
In conclusion, Defendant has not demonstrated that counsel was constitutionally
ineffective, and that he suffered prejudice, as contemplated by applicable standards.
Defendant’s Motion will be denied, and no certificate of appealability shall issue. An
appropriate Order follows.
ORDER
AND NOW, this 12th day of May, 2017, it is hereby ORDERED, ADJUDGED, and
DECREED that Defendant’s Motion [53] is DENIED. No certificate of appealability shall issue.
BY THE COURT:
/s/Donetta W. Ambrose
_______________________________
Donetta W. Ambrose
Senior Judge, U.S. District Court

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