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Howard v. United States

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

October 31, 2019

ELERICO DURAN HOWARD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          MALCOLM J. HOWARD SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the court on the government's motion to dismiss, [DE #76], petitioner's motion to vacate under 28 U.S.C. § 2255, [DE #70]. Petitioner has filed a response, [DE #79], . as well as a motion to amend his motion to vacate, [DE #80]; a motion for a status update, [DE #81]; and a motion to dismiss the judgment for lack of jurisdiction, [DE #82]. Petitioner's motion to amend his motion to vacate, [DE #80], is GRANTED, and' the contents of this filing are considered herein. The time for further filing has expired. This matter is ripe for adjudication.

         BACKGROUND

         On March 3, 2015, petitioner pled guilty pursuant to a written memorandum of plea agreement to conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine and a quantity of marijuana, in violation of 21 U.S.C. §§ 841 (a) (1) & (b) (1) (B) and 846 (Count One) and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Eight). On July 7, 2015, the court sentenced petitioner to a total term of imprisonment of 144 months. [DE #53]. Petitioner appealed, and the judgment of the court was affirmed by the Fourth Circuit Court of Appeals in an unpublished opinion on June 6, 2016. [DE #65 and #66]. The mandate issued on June 28, 2016. [DE #68].

         On March 24, 2017, petitioner timely filed the instant motion to vacate under 28 U.S.C. § 2255, [DE #70], arguing various claims of ineffective assistance of counsel by both his counsel at sentencing and his appellate counsel. Petitioner also filed a motion to dismiss for lack of jurisdiction, [DE #82].

         COURT'S DISCUSSION

         I. Motion To Dismiss Judgment for Lack of Jurisdiction under 28 U.S.C. § 2072 and Rule 60, [DE #82]

         Petitioner moves to dismiss the judgment for lack of jurisdiction pursuant to 28 U.S.C. § 2072 and Rule 60, [DE #82]. Petitioner contends his October 9, 2014 indictment, [DE #20], was defective as he contends there was no evidence on the Court record that a grand jury voted to indict him. [DE #82 at 2]. Petitioner also contends his Fifth and Sixth Amendment rights were violated as the indictment charged him with conspiracy to distribute and possess with intent to distribute a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, and marijuana, a Schedule I controlled substance in violation of 21 U.S.C. § 841(a)(1), and that neither 21 U.S.C. § 846 nor a co-defendant was mentioned. Id.

         Petitioner was indicted by a grand jury and the foreperson's signature was redacted from, the public version in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, Fed. R. Crim. P. 6, and local practice of this court. Further, in contrast to petitioner's allegations, Count One also references 21 U.S.C. § 846. While there is no mention of a named co-defendant, the indictment charges petitioner "did knowingly and intentionally combine, conspire, confederate, agree and have a tacit understanding with persons known and unknown to the Grand Jury...." [DE #20]. There is no requirement that a conspiracy charge include names of co-conspirators. United States v. Ghannam, No. 04-CR-1177, 2005 WL 743066, at *1 (S.D.N.Y. Mar. 29, 2005) (collecting cases).

         Therefore, petitioner's argument that the court lacked jurisdiction is without merit, and this motion to dismiss, [DE #82], is DENIED.

         II. Motion to Vacate, [DE #70, DE #80, and DE #82]

         A. Standard of Review

         To prove ineffective assistance of counsel, petitioner must satisfy the dual requirements of Strickland v. Washington, 466 U.S. 668, 687 (1984). First, petitioner must show that counsel's performance was deficient in that it fell below the standard of reasonably effective assistance. Id. at 687-91. In making this determination, there is a strong presumption that counsel's conduct was "within the wide range of reasonable professional assistance." Id. at 689. The Strickland court reasoned that, "[i]t is all too tempting, for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. (citing Engle v. Isaac, 456 U.S. 107, 133-34 (1982), ). Second, petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A' reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Further, when challenging a guilty plea, petitioner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); see Lafler v. Cooper, 566 U.S. 156, 163-64 (2012) (applying Hill in the context of a defendant proceeding to trial).

         B. ...


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