Darron Deon HOWARD, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 13-1602.
United States Court of Appeals, Sixth Circuit.
Feb. 20, 2014.
459
Before STEWART, Chief Judge, JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES and HIGGINSON, Circuit Judges.
BY THE COURT:
A member of the court having requested a poll on the petition for rehearing en banc, and a majority of the circuit judges in regular active service and not disqualified having voted in favor,
IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.
Before: MOORE, SUTTON, and STRANCH, Circuit Judges.
OPINION
KAREN NELSON MOORE, Circuit Judge.
Petitioner-Appellant, Darron Deon Howard, has been involved with the criminal-justice system since he was eleven years old. When he pleaded guilty to violating
Howard‘s allegations of attorney misconduct and incompetence are troubling, and if proven true, they would usually support a finding of constitutionally deficient performance. In this case, however, we cannot say that the attorney‘s representation of Howard ran afoul of the Sixth Amendment‘s basic protections. An objection to Paragraph 38 would have been futile, and Howard has not explained how his sentence would be different but for the other misconduct he alleges. Therefore, we AFFIRM the district court‘s denial of Howard‘s
I. BACKGROUND
Early in the morning of February 3, 2006, witnesses reported to the police that a fight had broken out near 77 Grandville Avenue, SW, in Grand Rapids, Michigan. These tipsters claimed that an individual was armed with a handgun and pointing it at people in the vicinity of the altercation. Several officers responded. At the scene,
Due to a previous felony conviction, Howard could not own or possess a firearm. Accordingly, a federal grand jury indicted him for being a felon in possession of a firearm in violation of
During this sequence of events, the United States Probation Office prepared a PSR.1 The PSR recommended a sentence of 120 months of imprisonment—the statutory maximum. PSR at 17 ¶ 73. At this time, Howard was twenty-one years old, yet the probation office assigned him thirteen criminal-history points—placing him in Category VI—due in large part to his juvenile record.
This record begins early, and it is extensive. In the PSR, it spans twelve paragraphs over seven pages. Only Paragraph 38 is relevant to this appeal. In that paragraph, the probation office assigned Howard two criminal-history points for an adjudication that happened on October 11, 1996. Id. at 8 ¶ 38. At that time, Howard was eleven years old, and a probate judge found him delinquent for committing retail fraud and unarmed robbery. Id. He received probation. Id. Generally, this long-ago offense would not be factored into Howard‘s criminal-history score because he received only probation and it happened nearly a decade before his felon-in-possession offense. See
This early brush with the criminal-justice system, however, did not set Howard straight. A few months later, he violated his probation by maliciously destroying a building. PSR at 8 ¶ 38; 10 ¶ 39. The probate court extended his probation. Id. at 8 ¶ 38. In 1998, Howard violated curfew and repeatedly failed to comply with the terms of his probation. Id. As a result, the probate judge placed him first on a tether, then removed him from his mother‘s home, and eventually ordered him to Kokomo Academy, a boys’ school in Indiana. Id. at 9 ¶ 38; R. 95 at 15:15-24 (Remand Hr‘g Tr.) (Page ID # 452). In 1999, due to continued probation violations, the probate judge ordered Howard to the Muncie Reception and Diagnostic Center in Muncie, Indiana. PSR at 9 ¶ 38; R. 95 at 16:8-10 (Remand Hr‘g Tr.) (Page ID # 453); R. 108 at 44-45 (Juvenile Records).
At the sentencing hearing, Howard‘s counsel took issue with the PSR‘s scoring of Howard‘s criminal history. In particular, counsel objected to the awarding of one point each for Malicious Destruction of a Building (Paragraph 39), Possession of Marijuana (Paragraph 41), and Unlawful Driving Away of an Automobile (Paragraph 42).3 R. 55 at 8:21 (Sent. Hr‘g Tr.) (Page ID # 209). Counsel argued that each of these offenses occurred more than five years before Howard‘s felon-in-possession offense. Id. at 8:13-11:19 (Page ID # 209-12). The district court sustained the objections to Paragraphs 39 and 41; it overruled the objection to Paragraph 42. Id. at 14:9-19 (Page ID # 213). As a result, Howard‘s criminal-history category fell to Category V. When combined with the offense level of 28, this new category resulted in a guidelines range of 130 to 162 months of imprisonment.
Howard appealed, and we affirmed his sentence. United States v. Howard, 301 Fed.Appx. 446 (6th Cir.2008). In February 2010, Howard filed for relief under
On remand, the district court conducted the hearing. The testimony focused on the Glen Mills School and whether Howard‘s ordered attendance qualified as a “sentence to confinement.”
After the hearing, the district court denied Howard‘s
II. STANDARD OF REVIEW
“On appeal from the denial of a
III. ANALYSIS
On appeal, Howard asks us to vacate his sentence because he allegedly received constitutionally deficient representation in violation of the Sixth Amendment. His challenge takes two forms: one, Howard argues that his trial counsel provided ineffective assistance when he failed to object to the two criminal-history points assessed in Paragraph 38 of the PSR. Two, Howard claims that his counsel failed to communicate with him and to investigate potentially meritorious claims—both violations of counsel‘s ethical and professional responsibilities.
Claims such as these are governed by the familiar framework established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A petitioner must make two showings to qualify for relief: (1) “that counsel‘s performance was deficient“; and (2) “that the deficient performance prejudiced the defense.” Id. at 687. “An attorney‘s performance is deficient if ‘counsel‘s representation fell below an objective standard of reasonableness,‘” meaning “that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Huff v. United States, 734 F.3d 600, 606 (6th Cir.2013) (quoting Strickland, 466 U.S. at 688, 687). Deficient performance is prejudicial if “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is less than a preponderance of the evidence, as ‘a defendant need not show that counsel‘s deficient conduct more likely than not altered the outcome in the case.‘” Joseph v. Coyle, 469 F.3d 441, 459 (6th Cir.2006) (quoting Strickland, 466 U.S. at 693). We address each argument in turn.
A. Failure to Object
Howard‘s primary argument is that his counsel provided ineffective assistance by failing to object to Paragraph 38 of the PSR, which awarded Howard two criminal-history points. Howard maintains that a reasonable and competent lawyer would have made a timely objection, which would have been sustained because Howard was not sentenced or committed to Glen Mills. Regarding prejudice, he rightly points out that the subtraction of two points would have placed him in Category IV. This lower criminal-history category would have resulted in a guidelines-recommended sentencing range of 110 to 137 months of imprisonment.
Certainly, an attorney‘s failure to object to an error in the PSR‘s calculation of the guidelines—if left uncorrected by the district court—can be grounds for finding deficient performance. See, e.g., Harris v. United States, 204 F.3d 681, 682-83 (6th Cir.2000); Arredondo v. United States, 178 F.3d 778, 787-88 (6th Cir.1999); see also Hodge v. Hurley, 426 F.3d 368, 385-89 (6th Cir.2005) (holding that a defense counsel‘s failure to object to prosecutorial misconduct was ineffective assistance); Washington v. Hofbauer, 228 F.3d 689, 709 (6th Cir.2000) (same). The problem here, however, is that Howard‘s counsel did not commit an error by failing to make an objection to Paragraph 38, let alone one sufficient to offend the Sixth Amendment.
The probation office awarded Howard two criminal-history points in Paragraph 38 pursuant to
add 2 points under § 4A1.1(b) for each adult or juvenile sentence to confinement of at least sixty days if the defendant was released from such confinement within five years of his commencement of the instant offense[.]
Howard claims that his time at Glen Mills does not qualify as a “sentence to confinement,” and therefore, the district court erred by applying this guideline. In particular, Howard focuses on how he came to stay at Glen Mills. He argues that the probate judge “placed” him at Glen Mills, making his stay a condition of probation rather than “the direct result of an adjudication of guilt.” Pet‘r Br. at 17. Because his attendance at Glen Mills was only a condition of probation, Howard reasons, the district court should have ignored his time there, placing the consequences of his 1996 retail-fraud and unarmed-robbery ad-
Up to this point, our decisions interpreting
Howard latches onto Hanley‘s use of the word “commitment” and seeks to distinguish “placement“—the term used by the state probate judge—from “commitment” and “sentence.” See Pet‘r Br. at 14-16. He argues that his stay at Glen Mills was the result of his being a ward of the court and not because of an adjudication of guilt. In support, he marshals citations to Michigan legal publications, excerpts from his juvenile records, and snippets of testimony from his remand hearing. Ultimately, though, the district court is correct—at least on the facts of this case—that this is a distinction without a difference. See R. 102 at 5 (D. Ct. 2013 Op. & Order) (Page ID # 585).
In this context, a “sentence” is “the judicial determination of the punishment to be inflicted on a convicted criminal.” Random House Unabridged Dictionary 1745 (2d ed.1993). Or it can be the “[j]udgment of [a] court formally advising [the] accused of [the] legal consequences of guilt [for] which he has confessed....” Black‘s Law Dictionary 1362 (6th ed.1990). Both definitions encompass a wide range of judicial action, but common to each one is the notion of adjudication, the recognition by a judicial body of punishable wrongdoing by the juvenile. In a similar vein, a “commitment” is “a consignment to a penal or mental institution,” Merriam Webster‘s Collegiate Dictionary 231 (10th ed.1995), or “a written order of a court directing that someone be confined in prison,” Random House Unabridged Dictionary 412 (2d ed.1993). Again, adjudication—or something similar—is inextricably linked with the term “commitment.”
“Placement” is trickier. Adjudication could be a precondition for a placement, such as when we say that a felon was placed in a maximum-security prison. But “placement” is a malleable and ubiquitous word, one susceptible to many meanings. Adjudication is not always necessary to place a child in a group home, for instance, or to secure a placement for a child with a foster family. Accordingly, the use of the word “placement” itself, as opposed to “commitment” or “sentence,” does not resolve the issue in play. It is not enough to focus on whether a juvenile court uses particular magic words when sending a juvenile to a facility like Glen Mills. Nor is it enough to see if a juvenile‘s bad behavior resulted in him being confined. The focus of our attention must be on whether a child‘s confinement is the direct legal consequence, as determined by a judicial body, of wrongdoing.
Howard‘s arguments to the contrary are unconvincing. First, he claims that there is a distinction between placement and commitment under Michigan law, which demonstrates that his stay at Glen Mills was not part of a sentence to confinement. Pet‘r Br. at 15 (citing Tobin L. Miller, Juvenile Justice Benchbook § 12.8 (2d ed.1998)). This argument is not persuasive for multiple reasons. One, whether Howard‘s stay at Glen Mills was part of a sentence to confinement is a question of federal law. Williams, 176 F.3d at 311. As explained above, under our interpretation of
Second, Howard claims that he was not sentenced to confinement because the probate court ordered him to Glen Mills at the urging of his mother and not as a response to his various violations. Pet‘r Br. at 20. The record contradicts this theory: the order of disposition placing Howard at Glen Mills states that “it is adjudicated and ordered that the plea admitting the allegations of the petition ... be accepted.” R. 108 at 34 (Juvenile Records) (Page ID # 689). Only then does it go on to order Howard to Glen Mills. We certainly hope that juvenile courts act to put their temporary wards in the most beneficial of situations, but given these statements, it is inconceivable that the probate court ordered Howard to Glen Mills solely “for his own betterment” and not as a legal consequence for one of his many violations.4 Pet‘r Br. at 20. Furthermore, that
the probate court acceded to the recommendation of Howard‘s mother does not change the fact that he attended Glen Mills as part of a sentence to confinement any more than a district court‘s recommendation of a certain correctional facility makes a defendant‘s term of imprisonment anything but incarceration.
Third, Howard argues that the district court‘s failure to award two points under
Fourth, Howard cites our sister circuit‘s decision in United States v. Stewart, 643 F.3d 259 (8th Cir.2011), which upheld, as not clearly erroneous, a district court‘s finding that a juvenile was not confined while attending Glen Mills. Howard urges us to follow that decision, but in doing so, he overlooks several key points. To start, determining whether a juvenile‘s attendance at a facility qualifies as confinement is a fact-intensive inquiry. In Stewart, the Eighth Circuit noted that the district court had “heard uncontested testimony” that the juvenile had been free to leave, which was not the case here. Id. at 264. The district court in this case heard testimony from multiple witnesses and considered multiple exhibits describing Glen Mills and Howard‘s inability to leave the campus of his own free will. Given this information, the district court determined that Howard was confined at Glen Mills. We cannot say firmly, at least on the record before us, that that decision was a mistake. Moreover, as the government notes, the Eighth Circuit decided Stewart several years after Howard‘s sentencing, and therefore, it was unavailable for Howard‘s attorney to consult at the time of Howard‘s sentencing. In short, neither the logic nor the existence of Stewart convinces us that Howard‘s attorney erred in not objecting to Paragraph 38. Without finding error, we cannot hold that counsel‘s silence regarding Paragraph 38 violated Howard‘s Sixth Amendment rights.
B. Failure to Communicate and Investigate
Howard‘s second argument, which is largely derivative of his first one, is that his counsel provided ineffective assistance by failing to communicate with Howard and adequately investigate the merits of objecting to Paragraph 38. Specifically, Howard testified that he wrote his counsel several letters to which there was no response. R. 95 at 53:15-24 (Remand Hr‘g Tr.) (Page ID # 490). In those letters and in phone calls from friends and family, Howard requested that counsel object to the court‘s consideration of any of Howard‘s juvenile history. Id. at 56:6-20 (Page ID # 493). These requests also went unanswered. At the sentencing hearing, Howard admits, his counsel did object to several paragraphs in the PSR—though not Paragraph 38. But in his briefing before this court, Howard alleges that his attorney ignored Paragraph 38 because “trial counsel failed to fully inves-
If true, these allegations are deeply troubling. Counsel has an ethical obligation to “keep the client reasonably informed about the status of [his] matter” and “promptly [to] comply with reasonable requests for information.” Model Rules of Prof‘l Conduct R. 1.4(a)(3)-(4). An attorney cannot agree to represent a defendant and then ignore that defendant completely. A defendant has the right to be part of his defense. Likewise, an attorney must “act with reasonable diligence and promptness in representing a client.” Rule 1.3. Counsel cannot blunder into court without having performed basic research and preparation. See, e.g., Wiggins v. Smith, 539 U.S. 510, 534-35 (2003) (failure to investigate held to be ineffective assistance); Williams v. Taylor, 529 U.S. 362, 395 (2000) (failure to investigate and present mitigating evidence at sentencing held to be ineffective assistance); Carter v. Bell, 218 F.3d 581, 596 (6th Cir.2000) (“While we understand the great burdens on appointed trial counsel in capital cases ..., justice requires that counsel must do more than appear in court....“). That said, we recognize that counsel cannot be expected to present every argument suggested by a defendant-client, knowing that at least some are futile.
Whether the actions of Howard‘s counsel qualify as constitutionally deficient representation is not an easy question. We need not answer it now because Howard cannot make his required showing of prejudice. Under Strickland, Howard must demonstrate a reasonable probability that, but for his counsel‘s failure to prepare and to communicate with Howard, the outcome of his sentencing hearing would be different. See 466 U.S. at 694. Howard claims that this unprofessional behavior resulted in his attorney not objecting to Paragraph 38 at the sentencing hearing. As discussed above, however, counsel‘s failure to object to Paragraph 38 does not qualify, in this case, as constitutionally deficient performance. Whether counsel failed to object because he knew an objection would not succeed or he was just lucky makes no difference. Howard offers no other explanation for how his sentencing hearing would have turned out differently if his attorney had properly researched Howard‘s stay at Glen Mills or communicated with him. Therefore, Howard‘s second argument fails.
IV. CONCLUSION
At Howard‘s sentencing, his counsel failed to object to the awarding of two criminal-history points in Paragraph 38 of the PSR. Dedicated and well-prepared counsel may have lodged concerns with the district court and argued that the facts of this case show that Howard was not sentenced to confinement. But that objection, at least on the record before us today, would have failed. Therefore, counsel—whether prepared or not—did not commit an error that would sustain an ineffective-assistance claim. Accordingly, we AFFIRM the district court‘s denial of Howard‘s