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Howard v. United States of America

United States District Court, M.D. Tennessee, Nashville Division

March 10, 2017




         Kronski Howard, a federal prisoner presently housed at the Federal Correctional Institution in Manchester, Kentucky[1] 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.

         I. Procedural History

         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).

         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).

         II. 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. ( 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).

         III. 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 ...

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