United States District Court, E.D. North Carolina, Western Division
C. DEVER, III CHIEF UNITED STATES DISTRICT JUDGE
1, 2017, Dennis Ray Howard ("Howard") moved under
28 U.S.C. § 2255 to vacate, set aside, or correct his
235-month sentence [D.E. 132]. On May 25, 2017, Howard filed
an amended section 2255 motion [D.E. 135]. On August 16,
2017, the government moved to dismiss Howard's section
2255 motions for failure to state a claim [D.E. 137] and
filed a memorandum in support [D.E. 138]. On September 14,
2017, Howard responded in opposition [D.E. 140]. As explained
below, the court grants the government's motion to
dismiss, and dismisses Howard's section 2255 motions.
October 17, 2012, a jury convicted Howard of conspiracy to
distribute and possess with intent to distribute 100 grams or
more of a mixture or substance containing a detectable amount
of phencyclidine (TCP") from January 2010 to September
25, 2010, in violation of 21 U.S.C. § 846 (count one),
seven counts of distributing a quantity of PCP in violation
of 21 U.S.C. § 841(a)(1) (counts two through seven and
nine), distributing a quantity of PCP and aiding and abetting
in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 2 (count eight), possession with intent to distribute
a quantity of PCP in violation of 21 U.S.C. § 841(a)(1)
(count ten), and possession a firearm in furtherance of a
drug trafficking offense in violation of 18 U.S.C. §
924(c) (count eleven) See [D.E.64].
April 11, 2013, this court held Howard's sentencing
hearing. See [D.E. 86]. At the sentencing hearing, the court
denied Howard's motion for judgment of acquittal. See
Sentencing Tr. [D.E. 97] 2-9. The court then resolved
objections to the Presentence Investigation Report
"("PSR") [D.E. 80]. See [D.E. 97] 9-12. The
court calculated the advisory guideline range on counts one
through ten to be 120 to 121 months' imprisonment and on
count eleven to be 60 months' consecutive imprisonment.
See id. at 12. The court then granted the
government's motion for an upward departure because
Howard's criminal history category substantially
underrepresented the seriousness of Howard's
"criminal history or the likelihood that [Howard] will
commit other crimes." U.S.S.G. § 4A1.3(a)(1); Sent.
Tr. at 13-23. The court described at length Howard's
extensive criminal history. See Sent. Tr. at 13-23; PSR
¶¶ 16-30. When the court sentenced Howard on April
11, 2013, he was 41 years old, but his criminal history began
at age 16 when he was convicted of two felony counts of sell
or delivery of cocaine. See PSR ¶¶ 16-17. For those
convictions, Howard received a three-year sentence, but only
served about four months and was paroled. See Id.
The convictions were unscored in the PSR. See Id. At
age 17, Howard was convicted of four offenses:
resist/obstruct a public officer (PSR ¶ 18), second
degree trespass (id. ¶ 19), felony possession
of cocaine (id. ¶ 20), and fictitious
information to an officer (id. ¶ 21). Howard
received a two-year sentence for the felony cocaine
conviction, but only served about six months in prison and
was discharged. See id. ¶ 20. These four
convictions were unscored in the PSR. See Id.
18, Howard was charged with murder, but pleaded down to
voluntary manslaughter. See Id. ¶ 22.
During the incident, Howard and William Barnes shot Anthony
Hardy after an altercation between Barnes and Hardy. See id
Hardy died. See Id. Howard received a six-year
sentence for voluntary manslaughter and was paroled in
December 1992. See Id. While incarcerated, Howard
was placed in segregation two times for fighting and also was
disciplined for disobeying a prison official. See id In May
1993, Howard's parole was revoked after Howard violated
curfew thirteen times, failed to report to his probation
officer ten times, and failed to obtain employment. See id
After serving approximately 25 days for the revocation,
Howard again was paroled. See id Howard's voluntary
manslaughter conviction was unscored in the PSR. See
25, Howard was convicted in the United States District Court
for the Eastern District of North Carolina of conspiracy to
distribute and possess with the intent to distribute cocaine
and cocaine base (crack). See Id. ¶ 26. The
offense conduct involved Howard and his co-conspirator
selling at least 9 kilograms of cocaine and 8.6 kilograms of
cocaine base (crack) from 1994 to 1997. See
Id. In December 1997, the court sentenced Howard to
292 months' imprisonment. See Id. In December
2000, due to Howard's substantial assistance, the court
reduced Howard's sentence to 150 months'
imprisonment. See id.; Fed. R. Crim. P. 35(b). In June 2008,
Howard was released form federal prison. See PSR ¶ 26.
Howard returned to Wilson, North Carolina, he told associates
that the penalties for crack cocaine were too harsh;
therefore, he began distributing PCP. In short order, Howard
became a significant PCP dealer in Wilson. Moreover, Wilson
developed a unique PCP public-health problem when compared to
other towns in the Eastern District of North Carolina.
considering the record, U.S.S.G. § 4A1.3, and Fourth
Circuit precedent, the court granted the government's
motion and upwardly departed. See Sentencing Tr. at 13-23.
The court treated Howard as a defacto career offender. See
Id. The court then calculated Howard's advisory
guideline range on count one to be 420 months' to life
imprisonment and on counts two to ten to be 360 months'
imprisonment. See Id. at 20-23.
court considered the arguments of counsel and the factors
under 18 U.S.C. § 3553(a). See id. at 23-33.
The court recounted the serious nature of the eleven counts
of conviction. See Id. at 26-28. The court described
Howard's history and characteristics, including both his
troubled childhood and his pronounced, enduring, and serious
criminal history. See Id. at 28-30. The court also
noted that Howard was not a substance abuser himself. See
Id. at 29. Rather, he was a serious drug dealer with
a history of violence who was undeterred by his myriad
interactions with the criminal justice system. See
Id. The court emphasized the profound need for
incapacitating Howard from his inevitable, serious, future
criminal behavior. See Id. at 29-30. The court also
stressed the need for the sentence to promote general
deterrence and respect for the law. See Id. at 30.
The court then sentenced Howard to life imprisonment on count
one, 360 months' imprisonment on counts two through ten
(concurrent with count one), and 60 months' consecutive
imprisonment on count eleven. See Id. at 30-31.
April 11, 2013, the court also held Howard's revocation
hearing concerning Howard's alleged failure to comply
with his supervised release in case number 5:97-CR-98-
Id. See [D.E. 61 ] (No. 5:97-CR-98-D). Due to the
criminal conduct for which the jury convicted Howard in case
number 5:12-CR-9-D, the court found that Howard egregiously
violated the terms of his supervised release. See
id. at 2-4. The court calculated the Chapter 7 policy
statement range as 51-60 months' imprisonment, and
sentenced Howard to 60 months' imprisonment to be served
consecutively to his sentence in case number 5:12-CR-9-D. See
Id. at 4-6.
appealed in case number 5:97-CR-98-1D and case number
5:12-CR-9-D, and the appeals were consolidated. On appeal,
Howard (through appellate counsel) attacked the sufficiency
of the evidence and the substantive reasonableness of the
sentence in case number 5:12-CR-9-D, but did not brief the
reasonableness of the revocation sentence. On December 4,
2014, the United States Court of Appeals for the Fourth
Circuit dismissed Howard's appeal of his revocation
sentence in case number 5:97-CR-98-1D and affirmed
Howard's conviction in case number 5:12-CR-9-D. See
United States v. Howard, 773 F.3d 519, 522, 525-27 (4th
Cir. 2014). The Fourth Circuit, however, vacated Howard's
sentence in case number 5:12-CR-9-D as substantively
unreasonable. See Id. at 527-36.
21, 2015, the court resentenced Howard to 175 months'
imprisonment on counts one through ten to be served
concurrently and 60 months' imprisonment on count eleven
to be served consecutively, yielding a total sentence of 235
month's imprisonment. See Resentencing Tr. [D.E. 126]
31-44. Howard appealed. On February 3, 2016, the Fourth
Circuit affirmed Howard's sentence. United States v.
Howard, 631 Fed.Appx. 194, 195 (4th Cir. 2016) (per
1, 2016, Howard filed his first section 2255 motion [D.E.
132]. Howard contends that (1) the Assistant United States
Attorney ("AUSA") improperly vouched for government
witnesses during her closing argument at Howard's trial;
(2) ineffective assistance of trial counsel for failing to
object and request a curative instruction concerning the
AUSA's alleged vouching; (3) ineffective assistance of
appellate counsel for failing to contest Howard's
60-month revocation sentence in case number 5:07-CR-98-1D;
(4) ineffective assistance of trial counsel for failing to
move to strike testimony of witnesses concerning events that
took place outside the timeframe of the charged conspiracy;
and (5) ineffective assistance of trial counsel for failing
to object to Detective ...