Taylor v. United States

279 F. App'x 368

6th Cir.

2008

Check Treatment

Docket

Joseph Benjamin TAYLOR, III, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 05-2743

United States Court of Appeals, Sixth Circuit

May 28, 2008

368-369

BEFORE: RYAN, SILER, and COLE, Circuit Judges. RYAN, Circuit Judge.

when, in calculating a defendant‘s criminal history score, he accounted for the defendant‘s prior juvenile adjudication and concomitant seven-month commitment to the custody of the Kentucky Cabinet for Human Resources and thus added four points under the two quoted Guideline sections. In so concluding, Kirby specifically rejected the defendant‘s argument that “an adjudication of delinquency by a juvenile court cannot be deemed a conviction” and thus cannot trigger the application of either Sections 4A1.2(d)(2)(A) or 4A1.1.(e)(id.).

We have never wavered from Kirby (see, e.g., United States v. Hanley, 906 F.2d 1116, 1120 (6th Cir.1990)); United States v. Williams, 176 F.3d 301, 311-12 (6th Cir.1999); Phillips v. United States, 238 Fed.Appx. 89, 94 (6th Cir.2007), and our panel is in no position to do so today. Hall urges us to use the approach employed in United States v. Gener, No. 04 CR 423-17(RWS), 2005 WL 2838984, at *5 (S.D.N.Y. Oct.26, 2005), where the sentencing judge did not give the defendant two criminal history points under Section 4A1.2(d)(2)(A) for his prior juvenile adjudication because, the judge concluded, the defendant was sentenced to a “limited secure facility,” not a “prison-like facility,” and because “the length of confinement was not directly related to the gravity of the offense but rather was governed by his family circumstances and his special personal needs.” We cannot of course follow an unpublished district court decision—and one from another circuit at that—in preference to our own longstanding circuit caselaw. We hold that the sentencing judge correctly accounted for Hall‘s prior juvenile adjudications and periods of confinement with DCS when calculating his criminal history score as a necessary predicate to determining his final sentence.

VI. Conclusion

Hall‘s sentence was neither procedurally nor substantively unreasonable. In addition, the district court did not err when calculating Hall‘s criminal history score, correctly accounting for his prior juvenile adjudications and time spent in DCS custody. Hall‘s sentence is therefore AFFIRMED.

The petitioner appeals the district court‘s judgment dismissing his motion to vacate his sentence under 28 U.S.C. § 2255, arguing that he was denied his right to trial counsel as guaranteed by the Sixth Amendment. We conclude that the petitioner was not denied effective assistance of counsel and we will affirm the district court‘s judgment.

I.

Joseph Benjamin Taylor, III, was indicted on four counts of trafficking in cocaine and marijuana and one count of possessing a firearm as a convicted felon. During the jury voir dire, the prosecutor used one of his peremptory challenges to exclude the only African-American then remaining on the jury venire. Taylor promptly objected, citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The prosecutor gave several non-race related reasons for excluding the juror, and Taylor responded that the prosecutor‘s reasons were pretextual. The district court denied the Batson challenge and told Taylor that he could renew his objection after a full jury was selected, but before they were seated.

After the jury was seated, Taylor informed the court that he wanted to renew his Batson challenge. The trial judge ruled that the objection was untimely, and stated that, in any event, he would have denied the objection as meritless. At the trial‘s conclusion, the jury returned a guilty verdict against Taylor on all five counts in the indictment and the court sentenced him to a total of 420 months’ imprisonment. Taylor now appeals.

II.

Taylor argues that his attorney‘s failure to renew the Batson challenge before the jury was seated denied him his Sixth Amendment right to the effective assistance of counsel. A defendant claiming he was denied his constitutional right to receive reasonably effective assistance of counsel must demonstrate both that his attorney‘s conduct was constitutionally deficient and that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

III.

Assuming without deciding that the Batson challenge was made untimely and that counsel was therefore deficient, it is clear that Taylor suffered no prejudice because the district court ruled that it would have denied the Batson objection even if it had been timely asserted. To establish that he was prejudiced by his counsel‘s error, Taylor “must show that 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, 104 S.Ct. 2052. Since the untimeliness of the objection did not affect the outcome of the proceeding, we conclude that Taylor was not denied effective assistance of counsel, and accordingly affirm the district court‘s judgment.

We acknowledge that the Eleventh Circuit has adopted an “outcome on appeal” approach in evaluating ineffective assistance of counsel claims where the allegedly deficient conduct resulted in a failure to preserve an issue for appellate review. See Davis v. Sec‘y for Dep‘t of Corrections, 341 F.3d 1310 (11th Cir.2003). We decline to adopt this approach.

IV.

We AFFIRM the district court‘s judgment.