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Howell v. United States

September 9, 2010


The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge


Petitioner, Charles C. Howell, is before the Court on a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, filed on August 28, 2009. (Doc. 1). On October 26, 2009, Respondent filed United States' Response to Petitioner's Motion Under § 2255. (Doc. 5). Petitioner filed a Reply on February 16, 2010. (Doc. 8).

Petitioner has requested an evidentiary hearing on his claims of ineffective assistance of counsel. (Doc. 1). He is entitled to an evidentiary hearing only if he has alleged facts that, if proven, would entitle him to relief. Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009). As the factual issues relevant to Petitioner's claims in this action can be resolved on the record, an evidentiary hearing is not required. Oliver v. United States, 961 F.2d 1339, 1343 (7th Cir. 1992). For the reasons stated below, the Court finds that an evidentiary hearing is unnecessary, and Petitioner's Motion to Vacate is DENIED.


On May 17, 2006, a Superseding Indictment was returned against Petitioner, charging him with Conspiracy to Distribute a Controlled Substance from at least July 2003 through at least February 25, 2005 in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (b)(1)(C), pursuant to 21 U.S.C. § 846, and with the Distribution of Controlled Substances on February 28, 2005, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and (b)(1)(D). (4:05-cr-40113 Doc. 30). The Petitioner was arraigned before Magistrate Judge Thomas J. Shields on May 26, 2006, at which time he entered a plea of Not Guilty. (4:05-cr-40113 Minute Entry of 5/26/2006). The case was set for trial on June 5, 2006. (4:05-cr-40113 Minute Entry of 5/26/2006).

On June 1, 2006, Petitioner, by and through his attorneys Stephen M. Komie and Sarah E. Toney, made various motions to dismiss the Indictment, causing the Government to seek a continuance in order to properly respond. (4:05-cr-40113 Docs. 40 & 41; Minute Entry of 6/1/2006). The trial was reset for August 14, 2006. (4:05-cr-40113 Minute Entry of 6/1/2006). On August 2, 2006, this Court held its final pretrial conference, at which Petitioner and his attorney, Sarah Toney, were present. (4:05-cr-40113 Minute Entry of 8/2/2006). This Court denied Petitioner's Motion to Continue. (4:05-cr-40113 Minute Entry 0f 8/2/2006). After this Court denied Petitioner's subsequent Motion to Continue on August 10, 2006 (4:05-cr-40113 Doc. 55), Petitioner submitted an Exhibit List, a Witness List, and Proposed Jury Instructions in preparation for trial on August 14. (4:05-cr-40113 Docs. 56, 58. & 62).

On August 14, 2006, Petitioner, in the presence of his attorneys, changed his plea to guilty as to both Counts I and II of the Superseding Indictment. (4:05-cr-40113 Minute Entry 8/14/2006). Before this Court would accept his plea, it placed Petitioner under oath and questioned him as to whether he was knowingly and voluntarily making such a plea. (4:05-cr-40113 Doc. 112 at 3-6). After stating that he understood that he was under oath, Petitioner told this Court, amongst other things, that 1) he had discussed the charges and the case with his attorneys, including all possible defenses as well as the pros and cons of going to trial, 2) he was satisfied with the advice and counsel of his attorneys, and 3) no one, including his attorneys, had pressured him to plead guilty. (4:05-cr-40113 Doc. 112 and 5-6).

On May 4, 2007, Petitioner was sentenced to 235 months of imprisonment on each count, to be served concurrently, as well as four years of supervised release. (4:05-cr-40113 Minute Entry 5/4/2007). Petitioner, through his counsel, requested a two-level decrease for acceptance of responsibility, but the Court denied this request. (4:05-cr-40113 Doc. 113 at 175-77). Petitioner filed a timely notice of appeal on May 14, 2007. (4:05-cr-40113 Doc. 96). The only issue raised on appeal was whether this Court erred in concluding that Petitioner "managed or supervised at least one other participant in the drug distribution conspiracy." United States v. Howell, 527 F.3d 646, 649 (7th Cir. 2008). The Seventh Circuit affirmed this Court's decision., id. at 651, and Petitioner did not seek Supreme Court review.

On August 28, 2009, Petitioner filed the instant Motion to Vacate, Set Aside, or Correct Sentence, alleging ineffective assistance of counsel. (Doc. 1). First, Petitioner alleges that his counsel was not prepared for trial on August 14, 2006, and that they therefore "scared" him into entering a blind plea. (Doc. 1 at 7-8). Further, Petitioner claims that his counsel was ineffective at sentencing because they failed to put on evidence as to drug weights, and to properly question Petitioner's supporting witnesses. Petitioner claims that his attorneys' errors cost him three level reductions for timely acceptance of responsibility. (Doc. 1 at 10). Respondent filed its Response on October 26, 2009, to which Petitioner filed a Reply on February 16, 2010. (Docs. 5 & 8).


Section 2255 of Chapter 28 of the United States Code provides that a sentence may be vacated, set aside, or corrected "upon the ground that the sentence was imposed in violation of the Constitution." One such ground is the ineffective assistance of counsel in violation of the Sixth Amendment Right to Counsel. For Sixth Amendment claims of ineffective counsel, the Supreme Court established a two-prong test in Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail, Petitioner must establish that (1) counsel's representation fell below the threshold of objective reasonableness, and (2) but for counsel's deficiency, "there is a reasonable probability that... the result of the proceeding would have been different." Id. at 687, 694.

The test established in Strickland was extended to counsel's conduct during the pleading phase of trial proceedings in Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). To show that counsel was ineffective at pleading, Petitioner must prove that his attorney performed in a deficient manner and that in the absence of counsel's errors, Petitioner would not have plead guilty. Berkey v. United States, 318 F.3d 768, 772 (7th Cir. 2003). However, if Petitioner fails to show that counsel's alleged failure prejudiced his case, this Court need not consider the first prong of whether Petitioner's counsel acted outside of the range of professionally competent assistance. Id. (quoting Strickland, 466 U.S. at 697, for the proposition that "if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be followed.").

A. Ineffective Assistance of Counsel at Plea Hearing

Petitioner claims that his attorneys were not prepared on the date set for trial and thus convinced Petitioner to accept a blind plea. Despite the fact that it does not appear to the Court that Petitioner's counsel was unprepared,*fn1 it is not necessary for the Court to reach this determination because ...

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