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Miller v. United States

United States District Court, S.D. New York

August 1, 2017

HOWELL MILLER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION & ORDER

          PAUL A. CROTTY United States District Judge.

         Pro 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.

         Miller 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.

         The Court DENIES the motion. Miller's claims are meritless; the claims are contradicted by the record; and there is no need for a hearing.

         BACKGROUND

         From 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.

         On 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.

         The 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.

         The 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.

         On May 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.

         Sentencing 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.

         Miller 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.

         DISCUSSION

         I. Legal Standards

         A. Ineffective Assistance of Counsel

         To 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).

         Under 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.

         Under 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).

         B. § 2255 Evidentiary Hearings

         Under 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).

         II. Analysis

         A. Appellate Counsel's Failure to Challenge Guilty Flea

         Miller 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.

         Miller 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.

         The 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 ...


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