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Howard v. United States

United States District Court, E.D. North Carolina, Western Division

January 22, 2018

DENNIS RAY HOWARD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JAMES C. DEVER, III CHIEF UNITED STATES DISTRICT JUDGE

         On May 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.

         I.

         On 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].

         On 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. ¶¶ 18-21.

         At age 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 id.

         At age 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.

         When 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.

         After 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.

         The 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.

         On 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.

         Howard 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.

         On May 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 curiam) (unpublished).

         On May 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 ...


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