United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson III, United States District Court Senior
case is before the Court on Jason Howard's motion to
vacate, set aside, or correct his sentence in accordance with
28 U.S.C. § 2255, DN 1085, the Findings, Conclusions,
and Recommendation of Magistrate Judge Lanny King on that
motion, DN 1140, and objections filed thereto, DN 1144. In
his motion, Howard argues his counsel was ineffective because
counsel did not investigate or argue how Howard's
post-offense rehabilitation should be considered by the
Court. Finding that Howard's counsel and the Court were
permitted to address only limited issues on resentencing (and
thus counsel was not ineffective for failing to raise
others), the Court will deny the motion and accept and adopt
the report of the magistrate.
Factual Background and Procedural History
December 2008 to May 2010, Howard was involved with the
McCarthy drug ring in Louisville, Kentucky. In that scheme,
hundreds of kilograms of cocaine were imported and
distributed into the community. After an investigation,
Howard was arrested and his home was searched. A grand jury
returned a superseding indictment that charged Howard with
three counts: (1) conspiring to possess cocaine with the
intent to distribute in violation of 21 U.S.C. § 846;
(2) possessing cocaine with the intent to distribute in
violation of 18 U.S.C. § 841(a)(1); and (3) money
laundering in violation of 18 U.S.C. § 1956(a)(1). DN
156. In August 2011, Howard pleaded guilty to all three
counts. DN 404.
sentencing, this Court found Howard's total offense level
was 43 and criminal history was III. As a result, he faced a
Guidelines range with a minimum of life in prison. Believing
a life sentence to be inappropriately harsh for Howard's
crimes, this Court varied downward and sentenced Howard to
360 months' imprisonment. DN 572 at 114; DN 566. Howard
appealed. The Sixth Circuit affirmed in part, reversed in
part, and remanded for resentencing. United States v.
Howard, 570 Fed.Appx. 478, 479 (6th Cir. 2014).
Specifically, the Sixth Circuit found that this Court had
erred in refusing to grant a reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(a). Id.
resentencing, the parties and this Court agreed that Howard
should receive the three-point reduction for acceptance of
responsibility and an additional two-point reduction under
Amendment 782 to the Sentencing Guidelines. This resulted in
a new total offense level of 38 with a criminal history of
III and a resulting Guidelines range of 292 to 365
months' imprisonment. This Court then sentenced Howard to
292 months' imprisonment followed by five years of
supervised release. DN 982. Howard appealed the new sentence
to the Sixth Circuit, which affirmed. United States v.
Howard, 645 Fed.Appx. 459, 461 (6th Cir. 2016).
thereafter, Howard filed his motion to vacate, set aside, or
correct his sentence in accordance with 28 U.S.C. §
2255, DN 1085, followed by a memorandum in support, DN 1089.
The United States responded. DN 1097. Howard replied. DN
1101. The matter was referred to Magistrate Judge Colin
Lindsay and subsequently reassigned to Magistrate Judge Lanny
King. DNs 1088, 1139. The magistrate filed his Findings,
Conclusions, and Recommendation, recommending that the §
2255 motion be denied. DN 1140. Howard filed objections. DN
Court makes a de novo determination of the proposed
findings or recommendations of the magistrate to which the
parties have objected. 28 U.S.C. § 636(b)(1); F. R.
Crim. P. 59; F. R. Civ. P. 72. To the extent that no
objection is filed, the arguments are waived. Thomas v.
Arn, 728 F.2d 813, 815 (6th Cir. 1984),
aff'd, 474 U.S. 140, 147-48 (1985).
federal prisoner “claiming the right to be released
upon the ground that the sentence was imposed in violation of
the Constitution or laws of the United States, . . . may move
the court which imposed the sentence to vacate, set aside or
correct the sentence.” 28 U.S.C. § 2255(a). Howard
argues that he is entitled to relief under § 2255
because his right to effective assistance of counsel at
resentencing was violated when his counsel failed to
investigate and argue Howard's entitlement to a downward
sentence variance based on post-offense rehabilitative
Ineffective Assistance of Counsel
basic contours of ineffective assistance of counsel claims
are well-defined. To prevail on a claim that he was denied
effective assistance, Howard must meet the two-part test
established in Strickland v. Washington, 466 U.S.
668 (1984). Specifically, he must demonstrate: (1) counsel
made errors so serious and deficient compared to prevailing
professional norms that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment; and (2) counsel's deficient performance
prejudiced the defense. Id. at 687. The court must
be “highly deferential” of counsel's
performance and must make every effort to “eliminate
the distorting effects of hindsight.” Id. at
689. Therefore, the court must “indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.”
Id. For the second prong, a ...