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United States v. Hood

United States District Court, W.D. Oklahoma

June 19, 2018




         Before 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.[1]

         Factual and Procedural History

         Defendant 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.

         The 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[2] 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”).

         The 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.

         After 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.

         Before 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 months.

         Defendant 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).

         Defendant's Motion

         In the § 2255 Motion, [3] 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).[4] 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).

         Ineffective Assistance of Counsel

         A. Standard of Decision

         Ineffective 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 ...

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