Howard v. United States

• Decision Date: 10 February 2021
• Docket Number: CRIMINAL NO. 18-0260-JB,CIVIL ACTION NO. 20-0496-JB-MU
• Parties: NATHANIEL TYRONE HOWARD, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Alabama

NATHANIEL TYRONE HOWARD, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CIVIL ACTION NO. 20-0496-JB-MU

CRIMINAL NO. 18-0260-JB

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

February 10, 2021

REPORT AND RECOMMENDATION

This cause is before the Court on Petitioner Nathaniel Tyrone Howard's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 48) and the response of the United States (Doc. 54).¹ This action has been referred to the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72(a)(2)(R). Following consideration of all relevant pleadings in this case, it is recommended that Howard's § 2255 motion be DENIED without an evidentiary hearing. Compare, e.g., Rosin v. United States, 786 F.3d 873, 878 (11th Cir.) ("It is well-settled that the district court is not required to grant an evidentiary hearing when the defendant's claims are affirmatively contradicted by the record evidence, nor is a hearing required if the claims are grounded upon generalizations that are unsupported by the record evidence."), cert. denied, ___ U.S. ___, 136 S.Ct. 429, 193 L.Ed.2d 320 (2015), and United States v. Bejacmar, 217 Fed.Appx. 919, 921 (11th Cir. Feb. 15, 2007)² ("[I]f the petitioner's allegations are affirmatively contradicted by the record, or the claims are patently frivolous, a district court is not required to hold an evidentiary hearing.") with Means v. Secretary, Dep't of Corrections, 433 Fed.Appx. 852, 855 (11th Cir. July 12, 2011) ("[W]here 'the record refutes [a petitioner's] factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.'") (citation omitted)), cert. denied, 565 U.S. 1217, 132 S.Ct. 1580, 182 L.Ed.2d 198 (2012) and Allen v. Secretary, Florida Dep't of Corrections, 611 F.3d 740, 745 (11th Cir. 2010) ("A district court is not required to hold an evidentiary hearing if the claims 'are merely conclusory allegations unsupported by specifics,' . . . or 'if the record refutes the applicant's factual allegations or otherwise precludes habeas relief[.]'"), cert. denied, 563 U.S. 976, 131 S.Ct. 2898, 179 L.Ed.2d 1192 (2011).

FINDINGS OF FACT

On September 27, 2018, Howard was indicted on one count of conspiracy to possess with intent to distribute more than 50 grams of methamphetamine (actual), commonly known as ICE, 21 U.S.C. § 846. (Doc. 1, PageID. 1). Through the indictment, Howard was advised that due to the quantity of methamphetamine (actual) attributable to him, he was subject to the penalty provisions set forth in 21 U.S.C. § 841(b)(1)(A).³ (Doc. 1, PageID. 1). In addition to the language contained in the Indictment, the Government filed an Information on November 28, 2018, which advised Howard that pursuant to 21 U.S.C. § 851(a)(1),⁴ he was subject to increased statutory sentencing—from 10 years to life to life without parole—because of two prior felony drug convictions, to wit: (1) a 2006 conviction out of this Court on two felony counts of possession with intent to distribute crack cocaine for which he was sentenced to a term of imprisonment; and (2) a 1999 conviction out of the Circuit Court of Mobile County, Alabama on a felony count of unlawful distribution of cocaine for which Howard was sentenced to a term of imprisonment. (See Doc. 23, PageID. 58).⁵

On December 10, 2018, Howard filed a notice of intent to change his plea to guilty as to the sole count of the indictment (see Doc. 24, PageID. 61) and ten days later, on December 20, 2018, Howard entered a counseled guilty plea to conspiracy to possess with intent to distribute more than 50 grams of methamphetamine (actual), commonly known as ICE (see Doc. 28). As relevant here, the plea agreement included a provision incorporating by reference the Factual Resume, with Howard agreeing that the Factual Resume was true and correct. (Doc. 27, PageID. 72). The plea agreement also explained that the statutory maximum penalty Howard faced was life imprisonment without the possibility of parole, that the Court would impose sentence and that the United States Sentencing Guidelines are advisory and do not bind the Court. (See id. at PageID. 73; see also id. at ¶ 14, PageID. 74 ("The defendant understands that this Plea Agreement does not create any right to be sentenced in accordance with the Sentencing Guidelines, or below or within any particular guideline range, and fully understands that determination of the sentencing range or guideline level, or the actual sentence imposed, is solely the discretion of the Court.")).⁶ The plea agreement contains a Limited Waiver of Right to Appeal and Waiver of Collateral Attack, Howard acknowledging that he would not file a direct appeal or collaterally attack his conviction and sentence, except that he could raise on direct appeal that the sentence imposed was in excess of the statutory maximum or that the sentence constitutes an upward departure from the advisory guideline range and, further, he could claim ineffective assistance of counsel in a direct appeal or a § 2255 motion to vacate. (Doc. 27, at ¶ 23, PageID. 80-81).

Howard executed the plea agreement on December 11, 2018, specifically acknowledging the following: "I have consulted with my counsel and fully understand all my rights with respect to the offense charged in the Indictment pending against me. I have read this Plea Agreement and carefully reviewed every part of it with my attorney. I understand this agreement, and I voluntarily agree to it. I hereby stipulate that the Factual Resume,⁷ incorporated herein, is true and accurate in every respect, and that had the matter proceeded to trial, the United States could have proved the same beyond a reasonable doubt." (Doc. 27, PageID. 82-83 (footnote added)).

During the course of his guilty plea proceeding on December 20, 2018, Howard was asked by the Court whether he had discussed the indictment and the case in general with his attorney, whether he was satisfied with his attorney's advice, representation, and counsel, whether he had reviewed the plea agreement with his attorney before he signed it, and whether he understood the terms of his plea agreement; as to each of these inquiries, Howard replied in the affirmative. (See Doc. 51, PageID. 261-62). He confirmed two times that no one had made any promises or assurances of any kind that were not written down in his plea agreement to get him to plead guilty and specifically informed the Court that no one had threatened him or in any way forced him to plead guilty. (See id., PageID. 262-63).⁸ Howard also acknowledged his understanding that he could not change his plea back to not guilty simply because he did not like the sentence he received. (Id., PageID. 263). The Court then informed Howard of the following:

If you enter a plea of guilty to count one and if I find that there are sufficient facts from which to find you guilty of count one, the maximum punishment that could be imposed upon you would be a term of life imprisonment without parole[.]

(Id., PageID. 263). Howard expressly stated he understood the maximum term of imprisonment he was facing (see id., PageID. 264) and, as well, acknowledged his understanding that no one, including his attorney and the Court, could know exactly what the advisory sentencing guidelines would require in his case until the presentence report was completed (see id., PageID. 265) and that ultimately any estimate given by his attorney could still be wrong given that the sentence is ultimately for the judge to determine (see id., PageID. 265-66). Howard acknowledged all constitutional rights he was waiving by entering a plea of guilty as well as the appeal waiver. (See id., PageID. 266-68).

THE COURT: All right. Mr. Howard, to obtain a conviction of you at trial, the government would have to show several things all beyond a reasonable doubt and by competent evidence. They would have to show you and at least one other person in some way or manner agreed to accomplish a common and unlawful plan, and the common and unlawful plan in this instance was to possess and possess with intent to distribute methamphetamine, what's commonly called ice. And that you, knowing the unlawful purpose of the plan—that is, not by way of mistake or accident, but fully understanding what you were planning to do—willfully joined in the plan on at least one occasion. Do you understand what it is the government would have to prove beyond a reasonable doubt and by competent evidence to obtain a conviction of you at trial as to count one?

THE DEFENDANT: Yes.

THE COURT: Mr. Howard, before I may accept a plea of guilty from you, I must ask you some questions to satisfy myself that you are in fact guilty.

Mr. Howard, are you the Nathaniel Tyrone Howard listed in count one of the indictment?

THE DEFENDANT: Yes, sir.

THE COURT: Mr. Howard, between July the 1st of 2017 and August the 31st of 2017, were you in and around Conecuh County, Alabama?

THE DEFENDANT: Yes, sir.

THE COURT: I take judicial notice that's in the Southern District of Alabama.

And during that time did you and at least one other person knowingly and intentionally—that is, not by way of mistake or accident—come to an understanding that you and they would act together in some way or manner to possess 50 or more grams of what's commonly called ice methamphetamine?

THE DEFENDANT: Yes.

THE COURT: And was the plan to take this methamphetamine and to distribute them -that is, to transfer it from your possession or their possession to the possession of someone else, whether or not there was any money that was going to change hands or not?

THE DEFENDANT: Yes.

THE COURT: Are you satisfied, Counselor, with that factual basis?

MS. GRIFFIN: I am, Your Honor. And I would ask the Court to incorporate the factual resume, which he has signed, indicating the United States could prove those facts beyond a reasonable doubt

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