     13-0746
     Bland v. United States

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 29th day of April, two thousand fourteen.
 5
 6       PRESENT: GUIDO CALABRESI,
 7                DENNIS JACOBS,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       ANTONIO BLAND, SR.,
13                Petitioner-Appellant,
14
15                    -v.-                                               13-0746
16
17       UNITED STATES,
18                Respondent-Appellee.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        GEORGIA J. HINDE, New York, New
22                                             York.
23
24       FOR APPELLEES:                        NATHAN REILLY, Assistant U.S.
25                                             Attorney, (David C. James,
26                                             Assistant U.S. Attorney, on the
27                                             brief), for Loretta E. Lynch,
28                                             United States Attorney, Eastern

                                                  1
 1                              District of New York, Brooklyn,
 2                              New York.
 3
 4        Appeal from an order of the United States District
 5   Court for the Eastern District of New York (Korman, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the order of the district court be
 9   AFFIRMED.
10
11        Antonio Bland, Sr., appeals from an order of the United
12   States District Court for the Eastern District of New York
13   (Korman, J.), denying his motion to vacate, set aside or
14   correct his sentence pursuant to 28 U.S.C. § 2255. On
15   appeal, Bland contends that his counsel at sentencing was
16   ineffective for failing to argue that his prior state
17   convictions were not violent felonies under the Armed Career
18   Criminal Act, 18 U.S.C. § 922(e) (“ACCA”). We assume the
19   parties’ familiarity with the underlying facts, the
20   procedural history, and the issues presented for review.
21
22        “The question of whether a defendant’s lawyer’s
23   representation violates the Sixth Amendment right to
24   effective assistance of counsel is a mixed question of law
25   and fact that is reviewed de novo.” Triana v. United
26   States, 205 F.3d 36, 40 (2d Cir. 2000) (internal quotation
27   marks omitted).
28
29        To prevail on a claim of ineffective assistance of
30   counsel, a defendant must demonstrate that (1) counsel’s
31   performance was “deficient” as measured by an “objective
32   standard of reasonableness,” and (2) actual prejudice
33   resulted. Strickland v. Washington, 466 U.S. 668, 687-88
34   (1984). With respect to the second element, “a petitioner
35   cannot show prejudice if the claim or objection that an
36   attorney failed to pursue lacks merit.” Harrington v.
37   United States, 689 F.3d 124, 130 (2d Cir. 2012) (citations
38   omitted).
39
40        The ACCA raises the sentence of a felon convicted of
41   possessing a firearm to a mandatory minimum term of fifteen
42   years when the felon “has three previous convictions . . .
43   for a violent felony . . . committed on occasions different
44   from one another.” 18 U.S.C. § 924(e)(1). “Violent felony”
45   includes (among other offenses) “any crime punishable by
46   imprisonment for a term greater than one year” that “has as
47   an element the use, attempted use, or threatened use of

                                  2
 1   physical force against the person of another.”   18 U.S.C. §
 2   924(e)(2)(B)(i).
 3
 4        It is undisputed that Bland has three prior convictions
 5   in North Carolina for assault with a deadly weapon
 6   inflicting serious injury (a crime punishable by
 7   imprisonment for a term greater than one year), in violation
 8   of N.C. Gen. Stat. § 14-32(b). The four elements of that
 9   offense are: “(1) an assault, (2) with a deadly weapon, (3)
10   inflicting serious injury, (4) not resulting in death.”
11   State v. Jones, 538 S.E.2d 917, 922 (N.C. 2000). For
12   purposes of the North Carolina offense, an assault is “an
13   overt act or attempt, with force or violence, to do some
14   immediate physical injury to the person of another, which is
15   sufficient to put a person of reasonable firmness in fear of
16   immediate physical injury.” Id. (internal quotation marks
17   omitted). Obviously, an assault with a deadly weapon that
18   actually inflicts serious bodily injury satisfies the “use,
19   attempted use, or threatened use of physical force” element
20   of the ACCA. 18 U.S.C. § 924(e)(2)(B)(i). Bland argues
21   that the North Carolina offense cannot be a “use of physical
22   force” within the meaning the ACCA because intentional
23   conduct is not an element. But that is contradicted by the
24   language of the North Carolina statute, and the way it has
25   been interpreted by the North Carolina Supreme Court. See,
26   e.g., Jones, 538 S.E.2d at 922-23. Furthermore, neither the
27   Supreme Court nor this Court has held to date that §
28   924(e)(2)(B)(i) itself requires that the use of force be
29   intentional. As such, sentencing counsel’s failure to
30   object was not unreasonable.
31
32        For the foregoing reasons, and finding no merit in
33   Bland’s other arguments, we hereby AFFIRM the order of the
34   district court.
35
36                              FOR THE COURT:
37                              CATHERINE O’HAGAN WOLFE, CLERK
38




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