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United States v. Henry

United States District Court, D. Massachusetts

January 6, 2020

UNITED STATES OF AMERICA
v.
CHRISTOPHER HENRY, Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge.

         I. Introduction

         Petitioner 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.

         II. Standard of Review

         A 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 relief. Id.

         III. Procedural History

         On July 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.

         IV. Grounds for Relief

         Henry 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.

         V. Discussion

         A. Ineffective Assistance of Counsel

         To 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)).

         Reasonableness 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 omitted).

         To 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 ÔÇťabsent the [counsel's] errors, the sentencer . . . would have ...


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