Opinion
5:17-CR-00419-D 5:20-CV-00628-D
09-07-2022
Christopher Cobb, Petitioner, v. United States of America, Respondent.
MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II, United States Magistrate Judge
Petitioner Christopher Cobb, proceeding under 28 U.S.C. § 2255, seeks to vacate the two concurrent 170-month sentences imposed in connection with his guilty plea to Hobbs Act robbery. Mot. to Vacate, D.E. 55. Cobb's motion included several claims, but the only remaining one argues that his attorney rendered ineffective assistance at sentencing. Id. According to Cobb, his attorney should have argued that he was not a career offender because Hobbs Act robbery was not a crime of violence under the Sentencing Guidelines. When Cobb was sentenced, only the Tenth Circuit had reached this conclusion, United States v. O'Connor, 874 F.3d 1147, 1158 (10th Cir. 2017), but many other circuits, including the Fourth Circuit, would later reach a similar conclusion. The government argues that the attorney's failure to object to the enhancement was not so ineffective as to justify vacating Cobb's sentence and that no prejudice resulted. Hr'g Tr. at 49:18-54:3. The court referred the matter to the undersigned for an evidentiary hearing on the remaining claim. D.E. 71.
After conducting that hearing, reviewing the docket, and considering the parties' arguments, the undersigned concludes that Cobb is not entitled to the relief he seeks. The Fourth Circuit has held that an attorney's failure to be aware of a favorable case handed down by a different court of appeals does not constitute ineffective assistance of counsel. Honeycutt v. Mahoney, 698 F.2d 213, 217 (4th Cir. 1983). Thus, the undersigned recommends that the court deny Cobb's Motion to Vacate.
The district court referred this matter to the undersigned United States Magistrate Judge for the entry of a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1).
I. Background
In December 2017, a federal grand jury indicted Cobb on three counts of Hobbs Act robbery. D.E. 1. Four months later, Cobb entered into a plea agreement and pleaded guilty to two of the three counts. D.E. 31.
Several months later, the court sentenced Cobb to 170 months in prison. D.E. 42. The sentence reflected a career offender enhancement under § 4B1.1 of the Sentencing Guidelines. According to the Presentence Report (“PSR”), his federal offenses and Cobb's two earlier convictions for common law robbery in North Carolina constituted “crimes of violence.” D.E. 37. The enhancement elevated Cobb's advisory guideline range from to 84 to 105 months in prison to 151 to 188 months imprisonment. See D.E. 69.
Under the Sentencing Guidelines, North Carolina common law robbery qualifies as a crime of violence for purposes of the career offender enhancement. United States v. Gattis, 877 F.3d 150, 160 (4th Cir. 2017).
Although Cobb's counsel raised certain objections to the PSR (D.E. 35), she did not challenge the career offender classification. At the time of sentencing, the Fourth Circuit had not decided whether Hobbs Act robbery constituted a crime of violence under the Guidelines. See United States v. Green, 996 F.3d 176, 178 (4th Cir. 2021). The Tenth Circuit, however, had concluded that it was not. O'Connor, 874 F.3d at 1158. Shortly after Cobb's sentencing, the same judge who presided over his case adopted the Tenth Circuit's reasoning. See United States v. Sherrod, No. 5:18-CR-67-BR, 2021 WL 3824678, at *1 (E.D. N.C. Aug. 26, 2021) (discussing an August 2018 sentencing in which the judge found that Hobbs Act robbery was not a crime of violence under the Guidelines). The Fourth Circuit did the same several years later. Green, 996 F.3d at 179.
Cobb appealed his career offender designation. United States v. Cobb, 822 Fed.Appx. 202 (4th Cir. 2020) (per curiam). But the Fourth Circuit dismissed the appeal, noting that this issue was appropriately raised in a § 2255 motion. Id. Cobb then moved to vacate his sentence in November 2020. D.E. 55.
II. Analysis
Cobb claims that his sentence violated the Sixth Amendment because of his attorney's failure to object to the career offender enhancement. D.E. 55. An objection, he contends, was likely to succeed and would result in a significantly lower guideline range. Id. The government asserts that Cobb has not shown that counsel's performance was objectively unreasonable or that he suffered prejudice due to his counsel's actions. Hr'g Tr. at 49:18-54:3. After reviewing the conflicting evidence, the undersigned concludes that Cobb received effective assistance of counsel.
A. Standard of Review for § 2255 Petitions
Cobb can prevail on his motion in four ways. He could show that the district court imposed a sentence that violated the Constitution or laws of the United States. 28 U.S.C. § 2255(a). Or he could establish that the court lacked jurisdiction to sentence him. Id. He could also show that his sentence exceeded what the law allowed. Id. And if he cannot make any of those showings, he could still prevail by showing that his sentence was otherwise subject to collateral attack. Id. Regardless of which avenue he pursues, he must show that he is entitled to relief by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).
B. Ineffective Assistance of Counsel
Cobb claims that his sentence violates the Constitution because his counsel's performance was so inadequate that it violated his Sixth Amendment right to counsel. D.E. 55. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right. . .to have the assistance of counsel for his defense.” U.S. Const. amend. VI. This language “as originally understood and ratified meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel.” Padilla v. Kentucky, 559 U.S. 356, 389 (2010) (Scalia, J., dissenting). But over time, the Court has expanded the scope of the right beyond its original meaning. Garza v. Idaho, 139 S.Ct. 738, 756- 59 (2019) (Thomas, J. dissenting).
Now, under Strickland v. Washington, 466 U.S. 668 (1984), an attorney may violate a defendant's right to assistance of counsel if he fails to provide adequate legal assistance. Id. at 686. The right to counsel extends to all critical stages of a criminal proceeding, including plea negotiations, trial, sentencing, and appeal. See, e.g., Missouri v. Frye, 566 U.S. 134, 140 (2012); Lafler v. Cooper, 566 U.S. 156, 164- 65 (2012); Glover v. United States, 531 U.S. 198, 203- 04 (2001).
In Strickland, the Supreme Court held that a petitioner must satisfy a two-pronged test to establish a claim of ineffective assistance of counsel. 466 U.S. at 686-87. First, the petitioner must show that his attorney's performance fell below an objective standard of reasonableness. Id. at 688. As for the reasonableness prong, courts must be “highly deferential” to counsel's performance and must make every effort to “eliminate the distorting effects of hindsight.” Id. at 689. Thus, the court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id.
Second, the petitioner must show that he was prejudiced by his attorney's unreasonable performance. Id. at 693. To show prejudice, a petitioner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Additionally, the difference in outcome as a result of the unprofessional errors must have harmed the petitioner. Id. at 693.
1. Failure to Object to Career Criminal Enhancement Cobb contends that his trial attorney was ineffective in failing to challenge his designation as a career criminal at sentencing. D.E. 55. He bases this argument on the proposition that Hobbs Act robbery is not a “crime of violence” under § 4B1.1 of the Sentencing Guidelines. Id. Presently, Cobb is correct-all federal circuit courts that have considered the question have held that Hobbs Act robbery is not a crime of violence. See Green, 996 F.3d at 179 (Fourth Circuit); O'Connor, 874 F.3d at 1158 (Tenth Circuit); United States v. Camp, 903 F.3d 594, 604 (6th Cir. 2018); United States v. Eason, 953 F.3d 1184, 1194-95 (11th Cir. 2020); United States v. Scott, 14 F.4th 190, 198 n.7 (3rd Cir. 2021); Bridges v. United States, 991 F.3d 793, 802 (7th Cir. 2021); United States v. Prigan, 8 F.4th 1115, 1117 (9th Cir. 2021); United States v. Chappelle, 41 F.4th 102, 104 (2d Cir. 2022).
Crucially, however, only the Tenth Circuit had adopted Cobb's position at the time of his sentencing. O'Connor, 874 F.3d at 1158. In all other circuits, including the Fourth, the question of whether Hobbs Act robbery constituted a crime of violence remained unsettled at that time.
Cobb's attorney was aware of the Tenth Circuit's ruling in O'Connor prior to his sentencing. Hr'g Tr. at 12:13-20. Further, in an April 2018 letter to Cobb before the release of the PSR, his attorney proposed that they “might have grounds to file an objection” to his potential classification as a career criminal under O'Connor. Id. Yet Cobb's attorney never pursued such an objection. Id. at 18:25-19:12. Cobb argues that his attorney knew that the argument put forth in O'Connor was extremely persuasive and that her failure to raise that argument in this court constitutes ineffective assistance. Id. at 46:22-47:11. Cobb's attorney has stated that she would have raised the objection had she been reminded of it, but she ultimately believed that it was not a viable argument. Id. at 36:20-37:11.
While Cobb's frustration is understandable, the Fourth Circuit's decision in Honeycutt v. Mahoney bars his claim. In Honeycutt, a habeas petitioner argued that he received ineffective assistance of counsel because his attorney failed to object to a jury instruction that included a burden-shifting criminal presumption of unlawful and malicious killing in petitioner's murder trial. 698 F.2d at 215-17. Two years later, the Supreme Court ruled that burden-shifting presumptions in criminal cases (such as the one given in Honeycutt's case) violate the Fourteenth Amendment. Mullaney v. Wilbur, 421 U.S. 684, 703-04 (1975).
Honeycutt argued that the Court's ruling in Mullaney was foreshadowed by its earlier decision in In re Winship, 397 U.S. 358 (1970), and the First Circuit's interpretation of Winship in Wilbur v. Mullaney, 473 F.2d 943 (1st Cir. 1973), vacated, 414 U.S. 1139 (1974), order reinstated on remand, 496 F.2d 1303 (1st Cir. 1974). In Wilbur, the First Circuit upheld a lower court decision finding that a criminal presumption of malice which shifts the burden of proof onto the defendant violates due process. Id. at 948. There was no evidence in Honeycutt that petitioner's attorney had actual knowledge of Winship or Wilbur at the time of trial.
Despite the factual similarity between Wilbur and Honeycutt, the Fourth Circuit unequivocally held that “the instruction given at Honeycutt's trial regarding malice and unlawfulness was clearly in accordance with the well established rule in North Carolina.” 698 F.2d at 217. At the time of Honeycutt's trial, “neither [the Fourth Circuit] nor the Supreme Court had yet considered the issue raised in Mullaney.” Id. And while criminal defense attorneys ought to keep up with doctrinal developments in other circuits that may bolster their clients' arguments, “failure to raise every issue which might have support from other jurisdictions” does not “constitute[] ineffective assistance of counsel.” Id.
Cobb's habeas petition is largely analogous to Honeycutt's. In both cases, an individual convicted of a criminal offense petitioned for habeas relief based on ineffective assistance because his attorney failed to make an argument adopted by only one federal circuit. In both cases, the doctrinal developments following the petitioner's sentencing made clear that the forgone argument had a strong chance of success had it been presented. And in both cases, the outcome must be the same: while an attorney's failure to present the argument which eventually won the day may be cause for frustration, it is not, under current case law, grounds to find that the attorney rendered constitutionally deficient assistance. The district court should therefore deny Cobb's motion.
III. Conclusion
For these reasons, the undersigned recommends that the court deny Cobb's Motion to Vacate. D.E. 55.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.