United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge.
Christopher Henry (“Henry”) has filed a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2255
(the “Petition”), alleging ineffective assistance
of counsel (Grounds I, 2 and 3) and that the vacatur of a
prior state drug conviction as a result of Annie
Dookhan's misconduct at the Hinton Drug Lab warrants
relief as to his trial and sentencing (Grounds 4 and 5). D.
173. The government opposes the Petition. D. 186. For the
reasons discussed below, the Court DENIES the Petition.
Standard of Review
petitioner may seek post-conviction relief under § 2255
if his sentence “(1) was imposed in violation of the
Constitution; (2) was imposed by a court that lacked
jurisdiction; (3) exceeded the statutory maximum; or (4) was
otherwise subject to collateral attack.” David v.
United States, 134 F.3d 470, 474 (1st Cir. 1998). It is
the petitioner's burden to make out a claim for such
27, 2015, after a jury trial, Henry was acquitted of being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1), but was found guilty of possession of
cocaine base with intent to distribute in violation of 21
U.S.C. § 841(a)(1). D. 125. On November 16, 2015, the
Court sentenced him on the sole count of his conviction to 51
months' imprisonment to be followed by four years
supervised release. D. 135, 136. Henry filed a timely notice
of appeal. D. 137. On January 18, 2017, the First Circuit
affirmed his conviction. D. 154. Henry appealed to the
Supreme Court on April 19, 2017. D. 159. The Supreme Court
denied his petition for a writ of certiorari on June 5, 2017.
D. 160. Henry has now timely filed the Petition. D. 173.
Grounds for Relief
contends that his sentence was imposed in violation of the
Constitution based on several grounds: (1) his trial
counsel's failure to argue that the good faith exception
to the exclusionary rule should not apply to potential
suppression of information from Henry's cell phone
constituted ineffective assistance of counsel; (2) his
appellate counsel's failure to raise the good faith
exception argument on appeal and the resulting waiver of the
issue constituted ineffective assistance of counsel; (3) his
trial counsel's failure to preserve an objection to the
Court's decision not to give the jury a lesser-included
instruction on simple possession constitutes ineffective
assistance of counsel; (4) the subsequent vacatur of
Henry's prior state drug conviction means that the prior
conviction should not have been admitted at trial; (5) this
vacatur of Henry's prior state drug conviction also
warrants resentencing. D. 173 at 4-12.
Ineffective Assistance of Counsel
demonstrate ineffective assistance of counsel, a petitioner
must show that: “(1) ‘counsel's
representation fell below an objective standard of
reasonableness' and (2) ‘there is a reasonable
probability that, but for counsel's errors, the result of
the proceeding would have been different.'”
United States v. Constant, 814 F.3d 570, 578 (1st
Cir. 2016) (quoting Strickland v. Washington, 466
U.S. 668, 688, 694 (1984)).
is viewed “as of the time of counsel's
conduct.” Strickland, 466 U.S. at 690.
Judicial scrutiny of a counsel's representation and
performance must be “highly deferential” and the
Court should make “every effort . . . to eliminate the
distorting effects of hindsight.” Bell v.
Cone, 535 U.S. 685, 698 (2002) (internal quotation marks
demonstrate prejudice, Henry must show “that there is a
reasonable probability” that, but for the
attorney's deficient performance, there would have been a
different outcome. Strickland, 466 U.S. at 694. A
“reasonable probability is one ‘sufficient to
undermine confidence in the outcome.'” Johnston
v. Mitchell, 871 F.3d 52, 64 (1st Cir. 2017) (quoting
Gonález-Soberal v. United States, 224 F.3d
273, 278 (1st Cir. 2001)). When this claim is raised as to
potential sentencing prejudice, the defendant must
demonstrate that “absent the [counsel's] errors,
the sentencer . . . would have ...