Darron Howard v. United States

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0036p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Petitioner-Appellant, -
DARRON DEON HOWARD,
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No. 13-1602
v.
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Respondent-Appellee. -
UNITED STATES OF AMERICA,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
Nos. 1:06-cr-00126-1; 1:10-cv-00163—Paul Lewis Maloney, Chief District Judge.
Decided and Filed: February 20, 2014
Before: MOORE, SUTTON, and STRANCH, Circuit Judges.
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COUNSEL
ON BRIEF: Brian P. Lennon, Elinor R. Jordan, WARNER NORCROSS & JUDD LLP,
Grand Rapids, Michigan, for Appellant. Sally J. Berens, UNITED STATES
ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
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OPINION
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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 18 U.S.C. § 922(g)(1) in 2006, his many run-
ins with the law resulted in a rather high criminal-history score. At sentencing, his
counsel objected to several of the Presentence Investigation Report’s (“PSR”)
assignments of criminal-history points for some of Howard’s juvenile offenses. The
district court sustained two of the objections, leaving Howard in Criminal History
Category V and with a guidelines-recommended range of 130 to 162 months of
1
No. 13-1602 Howard v. United States Page 2
imprisonment. The district court sentenced Howard to the statutory maximum of 120
months of imprisonment. Since then, Howard has filed a petition under 28 U.S.C.
§ 2255 alleging that his counsel’s failure to object to the PSR’s award of two criminal-
history points in Paragraph 38 rendered his representation constitutionally deficient. The
district court denied his petition.
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 § 2255 petition.
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, they
noticed a young man matching the description given by the concerned callers and
approached. The officers identified themselves, and the individual fled. Mid-flight, he
tossed a handgun underneath a nearby parked car. Several officers gave chase, and one
tackled the suspect to the ground. After placing him in handcuffs, the police learned that
the subdued suspect was Howard. Underneath the parked car, the officers found a
cocked and fully loaded .32-caliber revolver.
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 18 U.S.C. § 922(g)(1). Howard initially pleaded guilty pursuant
to a plea agreement, see R. 21 at 7 (Plea Agreement) (Page ID #39), but at the
defendant’s request, the district court vacated the plea prior to sentencing, see R. 29 at
No. 13-1602 Howard v. United States Page 3
1 (D. Ct. Order Vacating Plea) (Page ID #74). A few months later, on the eve of trial,
Howard changed his mind and pleaded guilty without the benefit of an agreement. R.
47 at 11:16 (Change of Plea Hr’g Tr.) (Page ID #163). The district court accepted his
plea. R. 46 at 1 (D. Ct. Order Accepting Plea) (Page ID #152).
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 U.S.S.G. § 4A1.2(d)(2) (2006) (allowing for the assignment of criminal-history
points only if a juvenile sentence was imposed within five years of the instant offense).2
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
1
The Probation Office revised the initial PSR. All references in this opinion are to the final
version of the PSR issued on March 6, 2007.
2
The Probation Office used the 2006 version of the United States Sentencing Guidelines. All
subsequent references are to this version of the guidelines.
No. 13-1602 Howard v. United States Page 4
#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) (Page ID #699–700). In 2000, police officers arrested Howard for possessing
marijuana, giving false information to a police officer, and trespassing—all in violation
of his probation. PSR at 9 ¶ 38; 10 ¶ 41. For these offenses, the probate judge ordered
Howard to the Glen Mills School for twelve to eighteen months. Id. at 9 ¶ 38. Later in
2000, police caught Howard driving a stolen vehicle while on leave from Glen Mills, and
during another leave, Howard absconded and provided false information to a police
officer again. Id. For these offenses, the probate judge continued Howard’s probation,
and he remained at Glen Mills until October 17, 2002. Id. Due to Howard’s repeated
violations, the probate court kept extending his original probation several years.
Because the last condition of Howard’s probation—being ordered to Glen Mills—was
a sentence to confinement within five years of his felon-in-possession offense, the
probation office assigned him two criminal-history points pursuant to U.S.S.G.
§ 4A1.2(d)(2)(A).
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
3
In Howard’s sentencing memorandum, his counsel objected to Paragraphs 38, 40, and 41. R.
27 at 2 (Sent. Mem.) (Page ID #69). However, as noted, the probation office revised the PSR. Even
though this revision occurred prior to Howard’s attorney filing the sentencing memorandum, it appears that
the attorney referenced paragraphs using the numbers assigned in a prior version of the PSR. See R. 55
at 8:21–23 (Sent. Hr’g Tr.) (Page ID #207). References in the text of this opinion are to the relevant
paragraphs in the revised PSR issued on March 6, 2007.
No. 13-1602 Howard v. United States Page 5
of 130 to 162 months of imprisonment. U.S.S.G. § 5A (Sent. Table); 18 U.S.C.
§ 922(g)(1). The district court sentenced Howard to 120 months of imprisonment—the
statutory maximum and the guideline range. R. 55 at 46:12–16 (Sent. Hr’g Tr.) (Page
ID #245).
Howard appealed, and we affirmed his sentence. United States v. Howard, 301
F. App’x 446 (6th Cir. 2008). In February 2010, Howard filed for relief under 28 U.S.C.
§ 2255, arguing that the district court erred by including the offenses listed in Paragraphs
38, 42, and 43 in his criminal-history score and that his counsel’s performance was
constitutionally deficient for failing to make timely objections to the inclusion of these
offenses. R. 60 at 4–6 (28 U.S.C. § 2255 Pet.) (Page ID #263–65). The district court
denied this petition, Howard’s request for an evidentiary hearing, and a certificate of
appealability. R. 72 at 15 (D. Ct. 2010 Op. & Order) (Page ID #366). We reversed,
holding that the district court abused its discretion by refusing to hold an evidentiary
hearing. Howard v. United States, 485 F. App’x 125, 129 (6th Cir. 2012).
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.” U.S.S.G. § 4A1.2(d)(2)(A). Howard’s mother testified that she
recommended the program to the probate judge after seeing it featured on the television
program 20/20. R. 95 at 17:9–35 (Remand Hr’g Tr.) (Page ID #454). John Aulisa, the
school’s admissions coordinator, explained that Glen Mills’s campus is “very similar to
a small private college” and that Howard’s living quarters were “similar to a dorm
room.” Id. at 27:1–13 (Page ID #464). On cross-examination, he did acknowledge that
“[o]ne hundred percent” of the program’s students were adjudicated delinquent and that
students could leave the facility only on a home pass, which needed to be granted by a
court “probably 99 percent of the time.” Id. at 28:5–8, 34:11–12 (Page ID #465, 471).
Howard, himself, stated that the program required him to take urinalysis and
breathalyzer tests. Id. at 46:5–6 (Page ID #483). He also testified that he directed his
trial counsel to object to Paragraph 38, pointing out that the original offense happened
No. 13-1602 Howard v. United States Page 6
in 1996—well before the five-year period considered for criminal-history points. Id. at
54:10–55:5 (Page ID #491–92).
After the hearing, the district court denied Howard’s § 2255 petition for a second
time. The court decided that there was no error in assigning two criminal-history points
under U.S.S.G. § 4A1.2(d)(2)(A) for the conduct described in Paragraph 38.
Specifically, the court found—as a matter of fact—that “Howard was not free to leave
Glen Mills” and, therefore, Glen Mills qualified as confinement. R. 102 at 7 (D. Ct.
2013 Op. & Order) (Page ID #587). It also rejected the argument that the probate
judge’s “placement” of Howard at Glen Mills—as opposed to her “commitment” of
Howard to the program—allowed Howard to escape the reach of U.S.S.G.
§ 4A1.2(d)(2)(A). Id. at 5–6 (Page ID #585–86). Thus, finding no error in the
computation of Howard’s criminal-history score, the district court refused to conclude
that Howard’s attorney provided deficient representation by not objecting to the PSR’s
award of two criminal-history points for the conduct detailed in Paragraph 38. The
district court granted a certificate of appealability, and Howard now appeals.
II. STANDARD OF REVIEW
“On appeal from the denial of a § 2255 motion, we review legal conclusions de
novo and factual findings for clear error.” Regalado v. United States, 334 F.3d 520,
523–24 (6th Cir. 2003) (citing Wright v. United States, 182 F.3d 458, 463 (6th Cir.
1999)). “A finding of fact will only be clearly erroneous when, although there may be
some evidence to support the finding, ‘the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed.’” United States
v. Latouf, 132 F.3d 320, 331 (6th Cir. 1997) (quoting Anderson v. City of Bessemer,
470 U.S. 564, 573 (1985)).
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
No. 13-1602 Howard v. United States Page 7
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 (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 667,
668)). 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.
No. 13-1602 Howard v. United States Page 8
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 U.S.S.G. § 4A1.2(d)(2)(A). This subsection of the guidelines directs a
court 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 adjudications outside the five-year consideration period.
And thus, under this theory, Paragraph 38 would not count toward his criminal-history
score.
Up to this point, our decisions interpreting § 4A1.2(d)(2)(A) have rarely
addressed this line of argument, focusing instead on whether the facility to which the
court directed the juvenile to report qualified as “confinement.” See, e.g., United States
No. 13-1602 Howard v. United States Page 9
v. Williams, 176 F.3d 301, 311 (6th Cir. 1999); see also United States v. McNeal, 175
F. App’x 546, 549 (3d Cir. 2006). In one of our few cases relevant to Howard’s
challenge on appeal, United States v. Hanley, 906 F.2d 1116 (6th Cir. 1990), we held
that a “commitment to a juvenile facility” qualified as a sentence to confinement. Id. at
1120 (emphasis added). And since then, a “steady stream of our caselaw” has reaffirmed
this holding. United States v. Hall, 279 F. App’x 359, 367 (6th Cir. 2008); see also id.
at 368 (collecting cases). But these decisions do not necessarily answer the main
question in this case: was Howard’s placement at Glen Mills the result of an
adjudication of guilt and a sentence to confinement?
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.”
No. 13-1602 Howard v. United States Page 10
“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.
Under this standard, we conclude that Howard’s stay at Glen Mills was part of
a sentence to confinement. From 1996, when Howard committed retail fraud and
unarmed robbery, until 2002, Howard was on probation and a temporary ward of the
Kent County Probate Court. See R. 108 at 14, 60 (Juvenile Record) (Page ID #669,
715). Each time he committed an offense, whether it was for maliciously destroying a
building or possessing marijuana, he violated that original probation. See, e.g., id. at
58–59 (Page ID #713–14) (showing that Howard pleaded guilty to maliciously
destroying a building and was continued on probation as a result). Each time, the
probate court ordered probation continued, and it ordered new sanctions. See, e.g., id.
at 58 (Page ID #713) (requiring Howard to make restitution, to attend counseling, and
to be placed on a tether). By 2000, after Howard pleaded guilty to possessing marijuana,
in violation of his probation and the laws of Michigan, the probate court ordered him to
Glen Mills. Id. at 34–38 (Page ID #689–93). The probate court used the word “placed,”
as it did at various points throughout its orders of disposition. Id. at 34 (Page ID #689).
No matter the exact word used, however, it is clear from the record that being sent to
Glen Mills was the legal consequence for Howard of his continued probation violations
and possession of marijuana. Thus, Howard’s placement at, or commitment to, Glen
Mills was a sentence to confinement within the meaning of U.S.S.G. § 4A1.2(d)(2)(A).
No. 13-1602 Howard v. United States Page 11
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 § 4A1.2(d)(2)(A),
Howard’s stay qualifies. Two, nothing in the Michigan statutes or the Juvenile Justice
Benchbook explains the legal distinction between “placement” and “commitment” to
indicate that the probate court consciously chose to use the one term and not the other.
As Howard himself admitted, the words appear interchangeably throughout his juvenile
record. See R. 96 at 10–11 (Pet’r Post-Hr’g Br.) (Page ID #512–13). Accordingly, we
see no reason to depart from our analysis above.
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
4
Throughout our opinion, we focus on Howard’s many juvenile violations. It should also be
noted that Howard has made good use of his time so far in prison. In his briefing before this court,
Howard’s counsel notes that Howard has earned an Associate’s Degree from Indiana State University,
been named to multiple honor societies, and participated in a drug-recovery program. See Pet’r Br. at 24.
If Howard were ever resentenced, these facts would be ripe for consideration pursuant to Pepper v. United
States, 131 S. Ct. 1229, 1240 (2011).
No. 13-1602 Howard v. United States Page 12
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
§ 4A1.2(d)(2)(A) for his stays at Kokomo Academy and the Muncie Reception and
Diagnostic Center demonstrates that his time at Glen Mills was not a sentence to
confinement. There is a relatively easy explanation for this distinction: Howard
attended Kokomo Academy and the Muncie Center more than five years before being
charged as a felon in possession. Therefore, under § 4A1.2(d)(2)(A), it would be error
for a court to consider those stays for criminal-history purposes.
Fourth, Howard cites our sister circuit’s decision in United States v. Stewart,
643 F.3d 259, 263–64 (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.
No. 13-1602 Howard v. United States Page 13
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 investigate” Howard’s juvenile history, including the nature of his
placement at Glen Mills. Pet’r Br. at 13. Therefore, Howard asserts that counsel’s
failure to object was due to incompetence and inadequate preparation, not because the
objection was frivolous or part of a strategy.
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
No. 13-1602 Howard v. United States Page 14
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 § 2255 petition.