Kronski v. United States of America
MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Kevin H. Sharp on 3/10/2017. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA,
Chief Judge Sharp
Kronski Howard, a federal prisoner presently housed at the Federal Correctional Institution
in Manchester, Kentucky1 brings this pro se action pursuant to 28 U.S.C. § 2255 to vacate, set aside
or correct an allegedly illegal sentence imposed by this court on September 17, 2012. (Docket No.
1). For the reasons set forth herein, the court finds that, with regard to Howard’s ineffective
assistance of counsel claim, an evidentiary hearing is required to resolve the question of whether
Howard did or did not expressly direct his counsel to file a notice of appeal after entry of judgment.
The court further finds that Howard’s motion as to his Due Process claim will be denied.
In January 2011, Howard was indicted of conspiracy to distribute and possess with intent to
distribute controlled substances, including 500 grams or more of cocaine and 280 grams or more of
crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Case No. 3:11-cr-00012, Docket No.
202)(Wiseman, J.). Howard entered a plea of guilty on September 4, 2012. (Id., Docket No. 1200).
Howard has not notified the court of his change of address. Beginning in 2013, mail sent by the court to the
address Howard provided to the court was returned as “undeliverable.” (Docket Nos. 20, 25, 30). The court has verified
that Howard now is held at the Manchester FCI facility. See www.bop.gov/inmateloc. According to the Bureau of
Prisons website, Howard’s release date is June 22, 2019. Id.
On that same day, the court sentenced Howard to 130 months’ imprisonment. (Id.) The court noted
that, in his plea agreement, Howard waived his rights to appeal except in limited circumstances.
(Id., Docket No. 1913 at pp. 7, 18).
Approximately five months later, on February 19, 2013, Howard filed a pro se Notice of
Appeal. (Id., Docket No. 1351). The United States Court of Appeals for the Sixth Circuit dismissed
the appeal as untimely. (Id., Docket No. 1362). Howard filed his present motion under § 2255 on
March 27, 2013. (Docket No. 1).
The Current Motion
First, Howard asserts a claim of ineffective assistance of counsel. Specifically, Howard
contends that his counsel was ineffective because, although Howard specifically told his counsel
after the sentence was imposed (Docket No. 5 at p. 3) that he wanted to appeal his plea and sentence,
his attorney failed to file a notice of appeal. (Docket No. 1 at p. 3). Howard’s motion was signed
under penalty of perjury, attesting that he instructed his attorney that he wanted to file a notice of
appeal. (Id. at p. 6).
Shortly after the motion was filed, the court conducted a preliminary examination thereof
and determined that the motion stated a colorable claim for relief. (Docket No. 13). The court
entered an order directing the government to answer, plead or otherwise respond. (Id.) After
seeking and receiving extensions of time within which to respond, the government has now filed its
response along with an affidavit from Howard’s former counsel, Thomas Drake. (Docket No. 28).
In his affidavit, Drake states that he does not remember Howard asking him to file an appeal.
(Docket No. 28-1 at p. 3). He states that if Howard had asked him to file an appeal, he would have,
and he would have filed an “Anders” brief since Howard had waived his right to file an appeal. (Id.
at p. 4).
Second, Howard claims that his Due Process rights were violated because defense counsel
did not file a sentencing memorandum or otherwise advocate for a lower sentence than the agreed
130 month sentence under Federal Rule of Criminal Procedure 11(c)(1)(C) in this case. (Docket No.
1 at p. 4).
The government, in response, contends that Howard’s position is “completely nonsensical”
because Howard requested immediate sentencing and, under those circumstances, defense counsel
would not have been able to file a sentencing memorandum as Howard insists should have occurred.
As the government explains, “[i]n petitioner’s scenario, defense counsel would have been asking
the Court to accept the plea and plea agreement, and then immediately asking the Court to reject that
same plea agreement. Such conduct would not have inured to the petitioner’s benefit.” (Docket No.
28 at p. 2 n.2).
28 U.S.C. § 2255 Standard
A prisoner who moves to vacate his sentence under § 2255 must show that the sentence was
imposed in violation of the Constitution or laws of the United States, the court was without
jurisdiction to impose such sentence, the sentence was in excess of the maximum authorized by law,
or the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. To prevail on a § 2255
motion, a movant “must demonstrate the existence of an error of constitutional magnitude which had
a substantial and injurious effect or influence on the guilty plea or the jury's verdict.” Humphress
v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Grifin v. United States, 330 F.3d 733,
736 (6th Cir. 2003)).
Non-constitutional errors are generally outside the scope of § 2255 relief. United States v.
Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A movant can prevail on a § 2255 motion alleging
non-constitutional error only by establishing a “fundamental defect which inherently results in a
complete miscarriage of justice, or an error so egregious that it amounts to a violation of due
process.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (quoting United States v.
Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotations omitted)).
Ineffective assistance of counsel claim
Howard’s first claim is that his counsel was ineffective for failing to file a notice of appeal,
despite Howard’s express directive that he do so. As noted above, Howard’s § 2255 motion is
subscribed as true “under penalty of perjury” and is dated and signed, and therefore has the same
effect as a sworn affidavit. 28 U.S.C. § 1746; see United States v. Davis, 28 Fed. App’s 502, 503
(6th Cir. 2002)(“Declarations made under penalty of perjury may be submitted in lieu of affidavits
in federal court.”). Drake, for his part, has submitted an affidavit stating under oath that he was
never requested by Howard to file a notice of appeal. These competing statements are sufficient to
create an issue of fact as to whether Howard did in fact ask Drake to file a notice of appeal on his
A prisoner who files a motion under § 2255 challenging a federal court conviction is
generally entitled to a hearing at which the district court is to “determine the issues and make finding
of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255. The hearing is mandatory
“unless ‘the motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief.’” Fontaine v. United States, 411 U.S. 213, 215 (1973)(quoting 28 U.S.C. §
255(b)). Because there is a disputed issue of fact as to whether Howard did or did not direct his
attorney to file a notice of appeal after his sentencing, a hearing to resolve that factual dispute is
required. If Howard is able to establish that his attorney disregarded his directive to file a notice of
appeal, the remedy will be to grant the § 2255 motion in order to allow Howard to take a delayed
direct appeal. Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998); Carrion v. United States,
107 F. App’x 545, 547 (6th Cir. 2004); United States v. Leachman, 309 F.3d 377, 380 n.4 (6th Cir.
Due Process claim
Howard contends that his Due Process rights were violated because Drake did not file a
sentencing memorandum or otherwise advocate for a lower sentence than the agreed 130 month
sentence. If Howard has a Due Process claim in this 28 U.S.C. § 2255 proceeding concerning the
validity of his federal judgment of conviction and sentence, it must fall under the Due Process
Clause of the Fifth Amendment. United States v. Morrison, 529 U.S. 598, 621 (2000); Bybee v. City
of Paducah, 46 Fed. App’x 735, 737 (6th Cir. 2002).
As noted in defense counsel’s affidavit and as is clear from the record of Howard’s criminal
case, he entered a plea of guilty and was sentenced on the same day. He requested immediate
sentencing under the terms of the binding plea agreement to which he specifically agreed. (Docket
No. 28-2)(Plea and Sent’g Tr. at pp. 6, 12, 16). As a practical matter, the government is correct that
asking defense counsel to advocate against the plea agreement which had just been entered likely
would not have inured to Howard’s benefit. If such conduct had caused the court to reject the
binding plea agreement, Howard likely would have been indicted on further charges to which he was
vulnerable and he would have been subject to a longer sentence. Specifically, a charge of violating
18 U.S.C. § 924(c) would have carried a mandatory consecutive minimum sentence of five years
imprisonment. (See, e.g., Docket No. 28-2)(Plea & Sent’g Tr. at p. 13). Furthermore, Howard’s
assertion that he would have qualified for the safety valve exception to the applicable mandatory
minimum of 10 years imprisonment also is unlikely given his admission that “HOWARD was armed
during the drug conspiracy to protect himself and his drug-related assets from robbery . . . .”
(Docket No. 28-3)(Plea Agrm’t at p. 6).
Notwithstanding the above points, Howard’s Due Process claim falls within the scope of the
waiver he signed as part of his plea agreement which effectively waived the right to raise this issue
on collateral review. (Id.)(Plea Agrm’t at p.15). Howard confirmed that he read and understood his
plea agreement. (Docket No. 28-2)(Plea & Sent’g Tr. at p. 6).
The Sixth Circuit has determined that a criminal defendant may waive “‘any right, even a
constitutional right’ by means of a plea agreement.” United States v. Fleming, 239 F.3d 761, 763
(6th Cir. 2001)(citation omitted). Because the right to appeal and the right to seek post-conviction
relief are statutory rights that may be waived, plea agreements that include waivers of § 2255 rights
are generally enforceable if the defendant entered into the waiver agreement knowingly,
intelligently, and voluntarily. Davila v. United States, 258 F.3d 448, 450-51 (6th Cir. 2001). In other
words, a knowing and voluntary waiver in a plea agreement not to file any motions or pleadings
pursuant to 28 U.S.C. § 2255 is an effective means to bar such relief. Id. at 451. Thus, Howard’s
Due Process violation claim is barred from collateral review because the waiver contained in his plea
agreement is sufficient to bar relief to this claim in this case.
In summary, Howard is bound by his plea agreement wherein he expressly waived “the right
to challenge the sentence imposed in any collateral attack, including but not limited to, a motion
brought pursuant to 28 U.S.C. § 2255 and/or 28 U.S.C. § 2241, and/or 18 U.S.C. § 3582(c)” except
for claims of “involuntariness, prosecutorial misconduct, or ineffective assistance of counsel.”
(Docket No. 28-3)(Plea Agrm’t at p. 13). Howard does not claim nor does the record indicate that
he did not knowingly, intelligently, and voluntarily waive his § 2255 rights. Accordingly, since
Howard’s Due Process claim is not covered by any of the grounds reserved by him in the plea
agreement, he has waived his right to bring the claim.
When the district court denies a ground for relief on the merits in a habeas corpus action,
a certificate of appealability “may issue . . . only if the applicant has made a substantial showing of
the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the standard being whether “reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because Howard has not made a substantial showing
of a constitutional right, a certificate of appealability will not issue with respect to his Due Process
Because an evidentiary hearing is required as to Howard’s claim of ineffective assistance of
counsel, he is entitled to be represented by counsel at such a hearing. Rule 8(c), Rules Gov’g § 2254
Cases. By separate order, the court will set this matter for a hearing and direct the appointment of
counsel for Howard.
Howard’s Due Process claim will be denied, and a certificate of appealability will not issue
as to that claim.
An appropriate Order will enter.
Kevin H. Sharp
Chief United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?