United States v. Zuberi Muata Hondo, A/K/A Kevin Parker

I those excluded cess.

deprived of their constitutional jury by upon

serve “all reason of their surely color will

skin understand.” Grut

ter, (Scalia, J., supra, dissenting). at 2349

By ignoring evidence that establishes discrimination,

prima by facie case of

relying solely on evidence standing

alone, possibly dispositive, Supreme ap-

North Carolina Court has

plied brazenly disregards test

Supreme ruling Court’s Batson. I

would therefore remand case to the may,

district court so that it in its discre-

tion, hold a hearing petitioner’s Batson (and

claim hearing, warranted trial)

order new or return the case to the

state trial court on a conditional writ corpus

habeas so that the state court can inquiry. conduct its own See Tankleff

Senkowski, (2d 135 F.3d Cir.

1998); Barker, see also Howell v. Cir.1990) (granting writ con-

ditioned on failure of retry state to defen- court).

dant date set reasons,

For I respectfully these dissent

from the court’s Part V. America,

UNITED STATES of

Plaintiff-Appellee, HONDO,

Zuberi Muata Kevin a/k/a

Parker, Defendant-Appellant.

No. 03-4241. Evatt, ARGUED: Katherine Elaine As- Defender, sistant Federal Public United States Colum- Appeals, Court bia, Carolina, Stacey for Appellant. Fourth South Circuit. Haynes, Denise Assistant United States Argued: Jan. Columbia, Carolina, Attorney, South April Decided: Appellee. ON BRIEF: Thur- J. Strom mond, Jr., Attorney, Colum- bia, Carolina, Appellee. South WILLIAMS, minor. In- WIDENER, criminal sexual conduct with a and Before qualified Hon- clusion of these convictions MOTZ, Judges. Circuit under section do as a career offender Guidelines, which increased 4B1.1 of the history category from III Hondo’s criminal (2002) (“A 4Bl.l(b) § to VI. See U.S.S.G. history category offender’s criminal career every in case under this subsection shall OPINION VI.”). Category It increased the also WIDENER, Judge: Circuit in offense levels for both the felon base charge of a firearm possession guilty to two pleaded Zuberi Hondo 2K2.1(a)(2), §§ charge. drug See U.S.S.G. a and illegally possessing firearm counts of 4Bl.l(b)(c). cocaine with possessing one count of Finding Hondo intent to distribute. result, sentencing range a As convictions, qualifying prior had two months, and the district court was 151-188 him to 170 months district court sentenced a term of 170 months. sentenced Hondo to offender under section 4B1.1 of career Sentencing Guidelines. the United States II. argues Hondo that the district appeal, On argument appeal is that Hondo’s sole in counting prior one of his court erred by including court erred disagree and affirm. convictions. We in- possession 1984 conviction for marijuana determining in I. tent to distribute history whether Hondo’s criminal warrant- initially indicted for two Hondo was penalties applicable the enhanced ed in being possession counts of felon of 4Bl.l(a) offenders. of the career Section ammunition, in firearms and violation of 18 that: Guidelines states 924(a), § § 922(g)(1) and one count U.S.C. (1) A defendant is a career offender possessing of cocaine with the intent eighteen at the defendant was least distribute, in violation of U.S.C. years at time the defendant com- old 841(a) (b)(i)(C), § and one count of conviction; the instant offense of mitted using carrying knowingly firearm (2) the instant offense of conviction is a offense, drug trafficking relation to felony that either a crime of violence 924(c)(l)(A)(i). § violation of 18 U.S.C. offense; or a controlled substance charges These resulted from two traffic (3) prior the defendant has least two first, stops: on December felony of either a crime of convictions up pistols turned two loaded more violence or a controlled substance of- cocaine; second, grams than three fense. pistol. on March revealed another

In for Hondo the first two exchange government’s prom- concedes 924(c) count, § drop prongs statutory analysis ise to of the are satis- pleaded guilty charges. prong, to the other three fied. He relies instead on the third calculating claiming Hondo’s sentence under the the district court erred Guidelines, qualifying prior the district court counted both that he had two one convictions. He claims that his 1984 con- Hondo’s two convictions: possession 1984 for with the intent to viction was obtained marijuana, distribute one in and is therefore invalid and cannot cult against purposes burden is mentioned in concurring be counted gov- enhancements. The opinion, career offender adopt F.2d and we position takes the that he had ernment 108-11, discussion mentioned in pp. attorney, to an as the waived concurring Judge Wil- district court held. kinson. regarding prior rule convic- general The Because Hondo maintains that his 1984 in a analyzing tions is clear: whether de- conviction was obtained offender, is a career a district fendant counsel, we consider the un- circumstances a predicate court must count as conviction der which it was obtained. govern- state court offense that has not ment claims that Hondo repre- waived the reversed, vacated, invalidated. been of attorney sentation which the State Bacon, 94 F.3d 161— afforded him. And the district court Cir.1996) § (citing 4A1.2 U.S.S.G. permitted testify this case Hondo to at the 6). cmt. n. There is no evidence sentencing hearing. It weighed that testi- reversed, conviction had been either mony against the state court documents

vacated, or invalidated. Hondo did not file government. offered nor post petition, a state conviction relief Hondo jail testified while in await- petition. did he file a federal habeas His ing marijuana charge, bond on the appeal direct to the South Carolina Su- public screener for the defender’s office preme Court was not successful. contacted and told him he would be exception to the above rule with appointed counsel. After Hondo tes- respect previous to collateral attack on a tified, any he never had communication sentencing in a federal proceed- public defender’s office or States, ing is Custis v. United Hondo, appointed According counsel. 485, 496, 128 L.Ed.2d 517 he went to South Carolina General Ses- (1994): sentencing a defendant in a federal days sions straight begin- Court for three proceeding collaterally challenge ning required by June as prior conviction used to enhance his sen bond, release on but his name was never grounds tence on federal constitutional un called and he was not told to return at the less the conviction “was obtained * day. end of the third Bacon, absence of counsel.” 94 F.3d at contrary, government To the offered documents from the record of the 1984 The determination of whether In the order prosecution. addition to question to counsel has been waived is a of by jury, of conviction after trial October law that we review de novo. See United presumption to which we attach a Singleton, States v. 107 F.3d 1097 n. (4th Cir.1997). validity, however, Raley, of see Parke Importantly, (1992), 121 L.Ed.2d 391 arguable even when an is government points raised, to the records especially the defendant bears an first, Sep- proving difficult convic- the state court. The dated burden 14, 1984, orders that the trial of tion was invalid. See States v. tember United (4th Cir.1992). (who at that time went the name 108-11 Parker) Custis, predates Although place during Jones that diffi- Kevin not take * adopted reasoning We have the Custis "in the F.3d at 163. Bacon, sentencing.” context of Guidelines finding that Hondo waived his support due to the fact that week of to the which he had at away at a bar associ- attorney would be specific court made find- order, time. The state This seminar. ation-sponsored actions, ings to Hondo’s and Hondo’s Defender, lists the Public the motion evidence was insufficient to re- testimonial postpones attorney by name addition, findings. those the dis- behalf, clearly estab- trial on her re- trict court made its own represented that Hondo lishes testimony gard to Hondo’s on his claimed at that time. “It not credi- appearance state court. is issue as relevant the waiver Equally ble,” the district “that he sat said court’s second order dated the state days speaking for three without court that Hondo which finds October office.” anyone public from the defender’s by the longer representation wished no together, Taken the state court record attorney in the earlier order same named credibility court’s determina- district In the October no in our that tion leave order, the trial court found that Hon- 23rd right Hondo was afforded the to lawyer keep to in contact with his do failed and that the same was waived. court, even after notice of his Because Hondo did not demonstrate order reflects the impending trial. The that his state court conviction was to court’s that Hondo failed assist counsel, obtained his attorney indicated his such actions challenge The court fails. representation by longer Hondo no desired correctly thus included the conviction its attorney. The second said order was that analysis. sentencing attorney signed by the who moved for judgment of court is the district result, entry of the same. As a the second accordingly that trial counsel provided order AFFIRMED. re- public defender’s office “be representation lieved of the of the Defen- MOTZ, DIANA GRIBBON Circuit dant.” Judge, dissenting. sentencing, At Hondo’s November case, single this we must resolve general in the sessions his pos- question: should state conviction court attorney called the attention of the marijuana, session with intent to distribute to the fact that he had been tried in counsel, without adjudged absentia and absentia, but he did not raise at that hear- be used to enhance a defendant’s sentence ing present claim that he had no attor- for federal crimes committed almost twen- ney present at trial in he which ty years question of this later? Resolution guilty. found that State records also show grave consequences has for Zuberi Hondo. advised, the time Hondo had been he uncounseled, Only if the in absentia state bail, was let to he did not conviction—obtained when Hondo was ordered for he would be tried his nineteen, eighth grade an education with absence. That same record also shows apparently prior experience no time, sign at that Hondo refused to justice system the criminal to en- —counts an acknowledgement of such advice. hance his federal sentence does Hondo appearances prosecuting Short of qualify as a career offender. Absent the counsel, status, or or guideline range Hondo’s state career offender them, communication from it difficult to im- for Hondo’s sentence is 57-71 months en- imagine strongly prisonment; what evidence could more with the career offender hancement, sentencing). majority than doubles to 151— lines As the proper- it more however, ly recognizes, the case before us 188 months. squarely falls within the “sole exception” Probation Office rec- The United States that general principle: exception to presentence report in its ommended prior convictions “obtained in violation of conviction not Hondo’s uncounseled state counsel,” right which defendants in determining counted Hondo’s federal may sentencing proceed- later probation officer based this sentence. Custis, ings. 511 U.S. at on the fact that Hondo recommendation represented by coun- present “was not Although the state trial judge never ex trial,” during and that “there [was] sel pressly found that Hondo right waived his vol- indicating no information counsel, implicitly did find untarily, knowingly, intelligently that Hondo’s conduct amounted to a volun representation.” waived his Nev- tary waiver of his to counsel. The ertheless, the district court counted the provides record evidence an adequate ba conviction, pro- reasoning “[t]he voluntariness, sis for this conclusion.* But scription counting uncounseled convic- alone, does not suffice. “[W]aivers of apply tions does not where there has been only voluntary,” counsel must not below,” a waiver the defendant and knowing “must also constitute a and intelli ... judge’s “this case has a circuit [state] gent relinquishment or abandonment of a finding of waiver.” right privilege.” known or Ari- Edwards v. majority Because I affirms. believe zona, 477, 482, 1880, 451 U.S. 101 S.Ct. 68 that the record evidence demonstrates the (1981). L.Ed.2d The Supreme 378 Court that judge state trial never determined intelligent has described a waiver as when knowing Hondo’s waiver was and intelli- doing the defendant “knows what he is gent, agree I cannot that the state convic- his choice is made with tion should be counted to make Hondo a McCann, Adams v. United States ex rel. I Accordingly, respect- career offender. 269, 279, 236, 317 63 U.S. S.Ct. 87 L.Ed. fully dissent. (1942). 268 “prescribed any has not for- Court I. mula or script to be read to a defendant Generally, proceed a defendant a federal sen- who states that he elects to with- —Tovar, tencing proceeding Edgardo has no constitutional out counsel.” Iowa U.S. -, -, right previous the of a 124 use S.Ct. 158 (2004). Rather, subsequent state conviction to enhance a L.Ed.2d 209 deter- “[t]he States, federal sentence. v. United mination of whether there has been an 485, 496-97, 1732, 114 intelligent S.Ct. 128 waiver of the to counsel (1994); case, depend, upon partic- L.Ed.2d 517 see also must in each the Bacon, (4th Cir.1996) 158, 94 ular surrounding F.3d 163 facts and circumstances case, (applying including background, expe- Custis to the context of Guide- that * lawyer” keep The record reveals that Hondo was informed and "to in contact with the present Court, of his to be his state trial and after due notice of a trial date that the trial in his would absence lawyer.” judge found that this The state trial should he fail to attend. The record also expression misconduct constituted an represented by documents that Hondo was longer part desire[d] that he "no 1984, counsel as of but that representation” by his counsel. [his] Hondo "failed to maintain contact with 368 pro

rience, conduct of the accused.” se. United States v. Cir.1992). Zerbst, 109 I that he 58 believe Johnson (1938). proved by has met that burden and a clear L.Ed. 1461 Other S.Ct. 82 preponderance of the evidence that complex factors include “the case-specific judge any steps never took charge, nature of the easily grasped or dangers make him “aware of the[se] proceeding.” Edgardo of the stage — Faretta, disadvantages.” U.S. Tovar, at -, U.S. S.Ct. First, although otherwise record — is, proceeding stage When the relatively informative' —contains no evi- here, has said that Court indicating that trial judge, dence the state may a defendant be allowed to “before else, any or one warned Hondo about the se, specifi- must proceed pro he be warned Rather, perils of proceeding pro se. hazards ahead.” cally of the Id. Faret simply record judge shows the state California, ta v. determined Hondo “failed to assist (1975), L.Ed.2d 562 the Court Counsel and actions has indicated [his] that a explained defendant “should be longer representation no desires [he] dangers made aware disadvan- by Petitioning Counsel.” ], tages [proceeding pro se so that the Moreover, very finding of the state record will establish that he knows what court that Hondo failed to before doing.” he Id. at S.Ct. 2525 “keep or in contact indi- with” (internal quotation marks and citation cates that the trial any never had omitted). Recognizing im- the “enormous Hondo, exchanges even first- portance and role that an plays Thus, judge hand observations of him. trial,” at a criminal the Court has “im- had no opportunity to ensure that Hondo posed rigorous the most restrictions on making was an informed choice to conveyed the information that be must to See, pro e.g., se “with State defendant, procedures that must 131, Thompson, 355 S.C. 584 S.E.2d observed, permitting before (Ct.App.2003) 136 (recognizing asking waive his to counsel at trial.” Pat- the defendant if he understood the conse- Illinois, terson v. 108 “ quences proceeding pro ‘quite se was (1988); S.Ct. 101 L.Ed.2d 261 see obviously impossible’ when a defendant n. (noting also id. 299 108 S.Ct. 2389 court”) fails to (quoting Pennsyl required “at counsel is to help (Pa.Su Ford, 715 vania A.2d 1143 gifted layman even the most adhere to the 1998)). per. evidence, rules of procedure and compre- dire, hend Moreover, the subtleties of voir examine record lacks indica- and cross-examine effectively witnesses tion that the state trial judge undertook to accused), (including object improper assess “from the record as a whole” wheth- more”). prosecution questions, and much er Hondo pro- understood the hazards of

ceeding pro se. United v. Gallop, States (4th Cir.1988). Indeed, 110 II. had attempted the state court to make hand, Turning determination, to the case at I recognize such a the information be- is on instance, burden Hondo to demon- regarding, fore the court — strate that he was not made aware of age, the Hondo’s educational background, and dangers disadvantages of proceeding experience judicial process—all

369 finding that Hondo un- against S.Ct. 30 L.Ed.2d 592 counseled Johnson, (1972). course, hazards. See holding, derstood these Such a does not (citing “back- already-served U.S. at S.Ct. reverse or vacate Hondo’s fac- “experience” conviction, as relevant ground” state it does mean that the tors); (listing at 110 Gallop, 838 F.2d district court should not have counted the factors to consider “the edu- among the in computing conviction background, age general capa- cational history. criminal See Lackawanna Coun accused”). only of an Hondo was Coss, bilities ty Attorney Disk the arrest at issue nineteen at the time of (2001) 404, 121 1567, 149 L.Ed.2d 608 grade out of ninth with a and had flunked (noting that when defendant “can demon- addition, average; grade point 0.0 strate that his current sentence was en- apparently arrest his first. hanced on the basis of a that was obtained where there was a fail- Thus, just not offered evi- Hondo has appoint ure to violation of the court failed to record dence that the state Amendment, Sixth the current sentence knowingness or in- a determination stand”). telligence Gallop, of his waiver. Cf. Rather, F.2d at 110. Hondo has also of- reasons, I For these would vacate the fered evidence that the state trial sentence, and remand the case for resen- never even “undertook to focus on whether tencing assign with instructions not to counsel understood his [Hondo] history points criminal for the uncounseled intelligently knowingly relin- conviction. Edwards, 484, 101 it.” quished S.Ct. 1880. testimony

The conflicts in Hondo’s be-

fore the district on which that court majority rely, undoubtedly cast credibility on the of Hondo’s claims complete ignorance regarding ap-

pointment represent of counsel to him and However, impending trial.

the date of his

they any way not in do undermine in the as to his

undisputed facts record youth, background, and paltry educational America, UNITED STATES of justice inexperience total with the criminal Plaintiff-Appellee, system at the time of his state arrest. facts, undisputed paired These with rec- contrary that contains no evidence ord BREEDEN, intelligence knowingness Shawn Arnette

bearing on the waiver, Defendant-Appellant. require of Hondo’s the conclusion that Hondo did not choose to with- America,

out counsel “with Plaintiff-Appellee, Because Hondo’s waiver of his intelligent, knowing counsel was not uncounseled, in abstentia Cassell, Defendant- scrutiny. cannot withstand constitutional Kevin Thomas Tucker, See, Appellant. e.g., United States

Case Details

Case Name: United States v. Zuberi Muata Hondo, A/K/A Kevin Parker

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Apr 30, 2004

Citation: 366 F.3d 363

Docket Number: 03-4241

Court Abbreviation: 4th Cir.