United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.
the Court is Defendant Michael Jay Hood's Motion to
Vacate, Set Aside or Correct a Federal Sentence Pursuant to
28 U.S.C. § 2255 [Doc. No. 114]. The Motion is combined
with a supporting brief and accompanied by Defendant's
affidavit [Doc. No. 114-1]. The government has filed a
response [Doc. No. 119] with an affidavit of Defendant's
trial counsel, Assistant Federal Public Defender Paul Antonio
Lacy [Doc. No. 119-1], and investigative reports regarding a
potential witness [Doc. No. 119-2 and 119-3]. The Court
appointed counsel to assist Defendant with the Motion in
light of a claim for relief under Johnson v. United
States, 135 S.Ct. 2551 (2015). See Order
Appointing Counsel [Doc. No. 122]. Defendant, through
counsel, has filed a reply brief [Doc. No. 129] and a Notice
of Supplemental Authority [Doc. No. 130]. For reasons that
follow, the Court finds that no hearing is needed and that
the Motion should be granted in part and denied in part on
the existing record.
and Procedural History
stands convicted by a jury of two violations of 18 U.S.C.
§ 922(g)(1) as charged in the Second Superseding
Indictment filed October 2, 2012. The Court appointed Mr.
Lacy, an experienced defense attorney, to represent Defendant
at his initial appearance on a criminal complaint filed May
18, 2012. Defendant was initially charged by the single-count
Indictment filed July 10, 2012; a second charge was added by
the Superseding Indictment filed September 4, 2012.
first § 922(g)(1) charge of being a felon in possession
of a firearm was based on events of March 14, 2012, in which
police detectives encountered Defendant at an apartment
complex in Oklahoma City, Oklahoma, while they were
investigating a string of burglaries. Defendant did not match
a description of the suspect, but the detectives stopped and
detained him after he ran from the area near an apartment
where the suspect lived. Defendant moved to suppress a pistol
found in the pocket of his jacket and other evidence
allegedly obtained in violation of the Fourth Amendment. The
Court denied the motion after an evidentiary hearing, finding
that no Fourth Amendment violation occurred because the
officers were allowed to conduct an investigatory detention
or Terry stop of Defendant (supported by reasonable
suspicion) and the concealed handgun found during the stop
provided probable cause for his arrest. See Findings
of Fact, Conclusions of Law & Order [Doc. No. 58] at 7, 9
(hereafter “10/4/12 Order”).
second § 922(g)(1) charge of being a felon in possession
of component parts of ammunition involved an unrelated
incident on June 6, 2012, in which Defendant allegedly shot
an individual in the leg. The circumstances of the shooting
were relevant only to the extent of proving that Defendant
possessed ammunition at the time of the incident.
denial of the motion to suppress, Defendant made other
pretrial filings in preparation for trial, including a motion
to exclude evidence of the burglary investigation and other
evidence that the government proposed for admission under
Fed.R.Evid. 404(b). The Court was not persuaded by the motion
with regard to the burglary investigation but reserved a
ruling on other evidentiary issues. See Order of
Oct. 12, 2012 [Doc. No. 69]. The case proceeded to a jury
trial that spanned four days. Despite Mr. Lacy's skill
and advocacy, Defendant was found guilty on both counts.
trial, the government had given notice of seeking a sentence
enhancement under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). A presentence
investigation and completed presentence report confirmed
Defendant's extensive criminal history. The Court
conducted a sentencing hearing on July 25, 2013, to resolve
Defendant's numerous objections, including a challenge to
the ACCA enhancement. As pertinent here, the Court found that
three felony convictions qualified as predicate ACCA
offenses, two serious drug offenses and one violent felony.
The violent felony was a 1985 state court conviction of
pointing a firearm at a person in violation of Okla. Stat.
tit. 21, § 1289.16. The Court's ACCA ruling
increased Defendant's sentence to a mandatory minimum
prison term of 15 years and a maximum penalty of life
imprisonment, see 18 U.S.C. § 924(e)(1), and
resulted in an advisory guideline range of imprisonment of
262-327 months. The Court imposed a prison sentence of 262
appealed, and the court of appeals appointed a different
attorney to represent him. On direct appeal, Defendant
challenged the Fourth Amendment suppression ruling, the
evidentiary ruling on admissibility of Rule 404(b) evidence,
and the ACCA determination that Defendant's 1985
conviction constituted a “violent felony” as
defined by 18 U.S.C. § 924(e)(2)(B)(i), because an
element of the offense of pointing a firearm was “the
use, attempted use, or threatened use of physical force
against the person of another.” The Tenth Circuit
affirmed on all issues. See United States v. Hood,
774 F.3d 638 (10th Cir. 2014), cert.
denied, 135 S.Ct. 2370 (2015).
§ 2255 Motion,  Defendant claims that his trial counsel,
Mr. Lacy, provided ineffective assistance in that (1) he
failed to call a potential witness, Nashonda Hughes, to
testify regarding the Fourth Amendment issues, and (2) he
failed to investigate or present evidence “to establish
a ‘diminished capacity' defense” that
“would have resulted in a downward departure in
sentencing.” See Def.'s Mot. [Doc. No.
114] at 5. Defendant also claims in two separate but related
grounds for relief that his sentence was improperly enhanced
under the ACCA because his 1985 conviction of pointing a
firearm does not constitute a “violent felony.”
See id. at 7, 11. Defendant invokes in his
supporting argument the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551
(2015). Defendant also argues that the statute of
conviction, Okla. Stat. tit. 21, § 1289.16, is
“categorically overbroad” and cannot serve as a
predicate ACCA offense because the crime covers conduct that
would not qualify as a “violent felony” under
§ 924(e)(2)(B)(i). See Def.'s Mot. at
11-12. Although this argument is not supported by any
citation of legal authority, Defendant explains through
counsel in his reply brief that this claim challenges the use
of the “modified categorial approach” in
violation of principles set forth in Descamps v. United
States, 133 S.Ct. 2276 (2013), to determine that
Defendant's pointing-a-firearm offense was a violent
felony. See Def.'s Reply Br. [Doc. No. 129] at
7-10. Defendant has provided supplemental notice of support
for his position in United States v. Titties, 852
F.3d 1257 (10th Cir. 2017).
Assistance of Counsel
Standard of Decision
assistance of counsel claims are . . . guided by the now
familiar Strickland test. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). Under this test, a petitioner must show that
“his trial counsel committed serious errors in light of
‘prevailing professional norms' and that there is a
‘reasonable probability' that the outcome would
have been different had those errors not occurred.”
United States v. Haddock, 12 F.3d 950, 955 (10th
Cir. 1993) (quoting Strickland, 466 U.S. at 688,
694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
United States v. Mora, 293 F.3d 1213, 1217 (10th
Cir. 2002); see Lockhart v. Fretwell, 506 U.S. 364,
369 (1993); Young v. Sirmons, 486 F.3d 655, 674-75
(10th Cir. 2007); see alsoUnited States v.
Barrett, 797 F.3d 1207, 1214 (10th Cir. 2015) (defendant
must show his counsel's performance was “completely
unreasonable, not merely wrong”). “An
insufficient showing on either element is fatal to an
ineffective-assistance claim, rendering consideration of the
other element unnecessary.” S ...