United States District Court, S.D. New York
OPINION & ORDER
A. CROTTY United States District Judge.
se Petitioner Howell Miller ("Miller") plead
guilty to a superseding indictment charging him with
conspiring to distribute and to possess with intent to
distribute 1, 000 kilograms and more of marijuana, in
violation of 21 U.S.C. §§ 846 and
841(b)(1)(A)(vii). The statutory maximum for this crime is
life imprisonment; and the guidelines (as finally determined)
called for a sentence of 151 to 188 months. Miller was
sentenced to 144 months imprisonment and ten years of
supervised release. On appeal, the Second Circuit affirmed
the sentence as reasonable.
now moves, pursuant to 28 U.S.C. § 2255, to vacate, set
aside, or correct his conviction and sentence, asserting
ineffective assistance of counsel. Specifically, Miller
argues that (1) his appellate counsel was ineffective by
failing to challenge the Court's acceptance of
Miller's guilty plea, based on Miller's contention
that the Court lacked a factual basis for doing so; (2) his
appellate counsel was ineffective by failing to argue that
the Court violated Federal Rule of Criminal Procedure
32(i)(1)(A), based on Miller's assertion that the Court
failed to verify that Miller had reviewed and discussed the
pre-sentence report ("PSR") with his trial counsel;
(3) his trial counsel was ineffective in failing to object to
the amount of marijuana used to calculate his base Offense
Level; and (4) his appellate counsel was ineffective by
failing to argue that the sentence violated Miller's
Sixth Amendment right to a jury trial.
Court DENIES the motion. Miller's claims are meritless;
the claims are contradicted by the record; and there is no
need for a hearing.
2002 to 2012, Miller was a leader in a conspiracy to
transport marijuana by the ton from Arizona to the Bronx, New
York, and to distribute it to customers in the New York area.
See Plea Tr. at 11:12-12:5. In 2005, Miller
purchased a trailer to transport the marijuana; in 2010, law
enforcement seized one of his trucks, as well as 4, 400
pounds of marijuana it contained. PSR ¶¶ 12, 18. In
January 2011, Miller traveled to Arizona to examine a load of
marijuana; Miller wanted to transport 1, 220 to 1, 500
pounds, but his associate only had 700 pounds available.
Id. ¶ 13. In February 2011, Miller received 2,
000 pounds of marijuana and sold 200 pounds from that
shipment to a co-conspirator at $900 per pound. Id.
¶ 17. On March 8, 2012, Miller was arrested.
Id. ¶20. The Government determined that the
approximate amount of marijuana in the ten year conspiracy
attributable to Miller was more than 10, 000 kilograms, but
less than 30, 000 kilograms. Id. ¶ 25.
December 10, 2012, the day jury selection was set to begin,
Miller informed the Court that he wished to change his plea
and instead plead guilty to the superseding indictment;
confirmed that he understood the consequences of pleading
guilty and had discussed them with his lawyer, including the
rights he was waiving; and testified that he was satisfied
with his lawyer's counsel, advice, and representation.
See Plea Tr. at 4:18-6:16; 13:20-14:2. Miller also
confirmed that he had had an opportunity to review with his
counsel the Government's Pimentel letter, dated
December 10, 2012. Id. at 6:17-23.
Court reviewed the contents of the Pimentel letter
with Miller; explained the nature of the offense to which
Miller would plead guilty; and confirmed Miller's
understanding that the crime's maximum penalty was life
imprisonment. Id. at 6:24-7:5. The Court also stated
that Miller's sentencing guideline Offense Level was 34
and confirmed that Miller understood its manner of
calculation. Id. at 8:9-14. The Court further
confirmed that Miller had reviewed the criminal history
categories and that he believed them to be accurate.
Id. at8:15-20. The Court then explained and
confirmed Miller's understanding that, based on
Miller's criminal history, his Criminal History Category
was III, resulting in a sentencing range of 188 to 235
months' imprisonment; and that Miller would be subject to
a 240 month mandatory minimum, due to a prior felony
information filed based on Miller's prior felony
narcotics conviction. Id. at 8:21-10:1.
Government then reviewed the elements of the charged
conspiracy, as well as its proof of the elements.
Id. at 11:12-12:16. Thereafter, Miller allocuted to
his conduct and entered a guilty plea to the superseding
indictment. Id. at 12:23-14:2. The Court found
Miller fully competent and capable of entering an informed
plea; concluded that the plea was "knowing and voluntary
and supported by an independent basis in fact containing each
of the essential elements of the offense;" and accepted
the plea. Id. at 14:4-13.
1, 2014, the Government moved to dismiss the prior felony
information. See Nolle Prosequi. The Court granted
the motion on May 12, 2014, reducing Miller's mandatory
minimum from 20 years to 10 years. See id.;
Sentencing Tr. at 2:2-5.
was held on May 21, 2014. The Court confirmed that Miller
still wanted to proceed with sentencing without the benefit
of an updated PSR reflecting the dismissal of the prior
felony information. Sentencing Tr. at 2:2-24. Miller's
counsel stated that there was no need to update because the
only change that the dismissal created was the reduction in
the mandatory minimum from 20 years to 10 years. Id.
The Court adopted the PSR's calculations of Offense Level
34 and Criminal History Category III, resulting in a
guideline range of 188 to 235 months' imprisonment.
Id. at 3:2-11. Taking into account an anticipated
two-level reduction, based on the predicted guidelines
amendment, the Court found that Miller's guideline range
was 151 to 188 months. Id. at 20:5-11. The Court
sentenced Miller to 144 months' imprisonment and ten
years of supervised release. Id. at 21:2-3. On
direct appeal, the Second Circuit affirmed the sentence
imposed by the Court. See Mandate of USCA at 5.
now moves under 28 U.S.C. § 2255, asserting ineffective
assistance of counsel. Miller argues that: (1) his appellate
counsel was ineffective in failing to argue that the District
Court erred in accepting Miller's guilty plea, without
first determining under Fed. R. Crim. P. 11(b)(3) that there
was a factual basis for the plea; (2) his appellate counsel
was ineffective in failing to argue that the District Court
violated Fed. R. Crim. P. 32(i)(1)(A); (3) his trial counsel
was ineffective in failing to object to the amount of
marijuana used to calculate Miller's base Offense Level;
and (4) relatedly, that his appellate counsel was ineffective
in failing to argue that the sentence violated his Sixth
Amendment right to a jury trial. Miller Mem. at 9.
Ineffective Assistance of Counsel
establish an ineffective assistance of counsel claim, a
defendant-petitioner must make two showings: (1) "that
counsel's performance was deficient" and "fell
below an objective standard of reasonableness" according
to "prevailing professional norms, " and (2)
"that the deficient performance prejudiced the
defense." Strickland v. Washington, 466 U.S.
668, 687-88 (1984).
the first requirement, the court considers "all the
circumstances" and "indulge[s] a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance." Id. at
688-89. The court must bear in mind that "[t]here are
countless ways to provide effective assistance in any given
case" and "[e]ven the best criminal defense
attorneys would not defend a particular client in the same
way." Id. at 689.
the second requirement, a defendant-petitioner must
demonstrate "that counsel's errors were so serious
as to deprive the defendant of a fair trial" and
"there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at
687, 694. "It is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of
the proceeding." Id. at 693; see Harrington
v. Richter, 562 U.S. 86, 110 (2011) ("[A]n attorney
may not be faulted for a reasonable miscalculation or lack of
foresight or for failing to prepare for what appear to be
remote possibilities."). To establish prejudice, the
Second Circuit "requires some objective evidence other
than defendant's assertions." Pham v. United
States, 317 F.3dl78, 182(2dCir.2003).
§ 2255 Evidentiary Hearings
28 U.S.C. § 2255(b), a petitioner is entitled to a
prompt hearing, "[u]nless the motion and the files and
records of the case conclusively show that the prisoner is
entitled no relief." "A defendant seeking a hearing
on an ineffective assistance of counsel claim 'need
establish only that he has a "plausible"
claim.'" Raysor v. United States, 647 F.3d
491, 494 (2d Cir. 2011) (quoting Puglisi v. United
States, 586 F.3d 209, 213 (2d Cir. 2009)). A defendant
is not "automatically entitle[d], " however, to a
hearing by simply filing a § 2255 motion. Gonzalez
v. United States, 722 F.3d 118, 130 (2d Cir. 2013).
Indeed, where a petitioner makes only "vague,
conclusory, or palpably incredible  allegations, " a
hearing is not required. Machibroda v. United
States, 368 U.S. 487, 495 (1962). Rather, "the
motion must set forth specific facts supported by competent
evidence, raising detailed and controverted issues of fact
that, if proved at a hearing, would entitle him to
relief." Gonzalez, 722 F.3d at 131. Courts
"need not assume the credibility of factual assertions
.. . where the assertions are contradicted by the record in
the underlying proceeding." Puglisi, 586 F.3d
at 214. Moreover, "when the judge who tried the
underlying proceedings also presides over a § 2255
motion, a full-blown evidentiary hearing may not be
necessary." Raysor, 647 F.3d
at 494 (2d Cir. 2011).
Appellate Counsel's Failure to Challenge Guilty
claims that his appellate counsel deprived him of effective
assistance by failing to argue that the Court erred in
accepting his guilty plea without first determining that
there was a factual basis for the plea. Miller Mem. at 9.
Miller claims that the Court "lacked a factual basis to
accept his plea to the prescribed drug quantity of 10, 000
kilograms or more of marijuana which triggered a base
[O]ffense [L]evel of 36, " because he only allocuted
responsibility for 1, 000 kilograms or more. Id. at
12. This is not an accurate account of the proceeding, and is
contradicted by the record.
was charged with violating 21 U.S.C. §§ 846 and
841(b)(1)(A). The elements of the charged drug conspiracy
are: (1) there was a conspiracy; (2) the defendant had
knowledge of the conspiracy; (3) the defendant intentionally
joined the conspiracy; and (4) it was either known or
reasonably foreseeable to the defendant that the conspiracy
involved the drug type and quantity charged. See United
States v. Santos, 541 F.3d 63, 70 (2d Cir. 2008); Plea
Tr. at 11:12-21.
Government recited the elements of the charged crime and then
summarized its proof of these elements, including witness
testimony as well as physical evidence. See Plea Tr.
at 11:12- 12:16. After hearing the Government's offer of