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.