     19-540-pr
     Hanks 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 TO 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 for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 7th day of July, two thousand twenty.
 4
 5          PRESENT: REENA RAGGI,
 6                           RAYMOND J. LOHIER, JR.,
 7                           STEVEN J. MENASHI,
 8                                   Circuit Judges.
 9          ------------------------------------------------------------------
10          RONELL HANKS,
11
12                            Petitioner-Appellant,
13
14                    v.                                                         No. 19-540-pr
15
16          UNITED STATES OF AMERICA,
17
18                           Respondent-Appellee.
19          ------------------------------------------------------------------
 1         FOR PETITIONER-APPELLANT:                     STEPHEN V. MANNING, Spears
 2                                                       Manning & Martini LLC,
 3                                                       Hartford, CT.
 4
 5         FOR RESPONDENT-APPELLEE:                      RAHUL KALE, Assistant United
 6                                                       States Attorney (Marc H.
 7                                                       Silverman, Assistant United
 8                                                       States Attorney, on the brief), for
 9                                                       John H. Durham, United States
10                                                       Attorney for the District of
11                                                       Connecticut, New Haven, CT.
12
13         Appeal from a judgment of the United States District Court for the District

14   of Connecticut (Janet C. Hall, Judge).

15         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

16   AND DECREED that the judgment of the District Court is AFFIRMED.

17         Ronell Hanks appeals from a January 8, 2019 judgment of the United States

18   District Court for the District of Connecticut (Hall, J.) denying his motion to

19   vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. In the

20   underlying criminal case, Hanks pleaded guilty to conspiracy to distribute and

21   possess with intent to distribute at least 100 grams of heroin and at least 500

22   grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. On

23   appeal, as he did in his § 2255 proceedings before the District Court, Hanks


                                               2
 1   argues that his trial attorney rendered ineffective assistance of counsel. He

 2   contends that counsel advised him that proceeding with a suppression hearing

 3   instead of pleading guilty would prompt the Government to withdraw a

 4   favorable plea offer and file a prior felony information under 21 U.S.C. § 851

 5   premised on a prior Connecticut drug conviction. Hanks claims that counsel

 6   mistakenly informed him that the prior state conviction qualified as a § 851

 7   predicate, thus exposing Hanks to a mandatory minimum sentence of twenty

 8   years’ imprisonment. We assume the parties’ familiarity with the underlying

 9   facts and the record of prior proceedings, to which we refer only as necessary to

10   explain our decision to affirm.

11         “We review the [D]istrict [C]ourt’s factual findings for clear error and its

12   legal [conclusions] de novo.” United States v. Hoskins, 905 F.3d 97, 102 (2d Cir.

13   2018). To demonstrate a Sixth Amendment violation, the petitioner bears the

14   burden of establishing (1) that counsel’s performance “fell below an objective

15   standard of reasonableness,” and (2) that he was actually prejudiced as a result of

16   counsel’s error. Strickland v. Washington, 466 U.S. 668, 687–88 (1984). “[T]he

17   defendant can show prejudice by demonstrating a reasonable probability that,


                                              3
 1   but for counsel’s errors, he would not have pleaded guilty and would have

 2   insisted on going to trial.” Lee v. United States, 137 S. Ct. 1958, 1965 (2017)

 3   (quotation marks omitted).

 4         The District Court denied Hanks’s § 2255 motion after conducting an

 5   evidentiary hearing in which both Hanks and his counsel testified. Like the

 6   District Court, we assume without deciding that Hanks’s counsel’s performance

 7   fell below an objective standard of reasonableness, and we therefore also avoid

 8   deciding whether his prior Connecticut felony drug conviction qualified as a

 9   § 851 predicate. For substantially the reasons provided by the District Court in

10   its January 8, 2019 ruling, we agree that Hanks did not show that he was

11   prejudiced by his counsel’s advice.

12         As a threshold matter, Hanks contends that the District Court failed to

13   apply the well-established “reasonable probability” standard in determining that

14   he failed to demonstrate prejudice. Id. at 1965. We disagree. Although the

15   District Court used some language that appeared to stray from the reasonable

16   probability standard, it clearly explained and understood that “the petitioner

17   must show that there is a reasonable probability that, but for counsel’s errors, he


                                               4
 1   would not have pleaded guilty.” Special App’x 11 (quotation marks omitted).

 2         As for the merits of Hanks’s challenge, we see no error in the District

 3   Court’s rejection of Hanks’s claim that he would not have pleaded guilty under

 4   the August 21, 2014 plea agreement but for trial counsel’s purported advice

 5   about the § 851 enhancement. See Lee, 137 S. Ct. at 1967. Even after Hanks’s

 6   counsel is alleged to have provided the advice, counsel, whose testimony the

 7   District Court credited, informed the Government that Hanks “remained

 8   determined to proceed to trial.” Joint App’x 634. And even after the

 9   Government asserted its intent to file a prior felony information under § 851 on

10   August 21, 2014, Hanks still declined to plead guilty—and the District Court

11   refused to credit Hanks’s explanation that the prospects of a twenty-year

12   minimum had not yet “sunk in.” Furthermore, during his plea colloquy, Hanks

13   raised several concerns with the District Court, but did not raise the § 851

14   enhancement or have any questions about it. We also agree with the District

15   Court that Hanks received several benefits from pleading guilty. The

16   Government agreed to dismiss three counts and to recommend a reduction in

17   Hanks’s adjusted offense level for acceptance of responsibility. As trial counsel


                                              5
 1   testified, Hanks’s guilty plea also eliminated the possibility of a superseding

 2   indictment charging an offense under 18 U.S.C. § 924(c), which could have

 3   resulted in a consecutive term of five years’ imprisonment. Hanks also failed to

 4   cast doubt on what his trial counsel at the evidentiary hearing described as the

 5   “overwhelming” Government case against him. Joint App’x 288, 331. These

6    facts support the District Court’s conclusion that there was no reasonable

7    probability that Hanks’s decision to plead guilty resulted from his counsel’s

 8   purported advice. See Chhabra v. United States, 720 F.3d 395, 408 (2d Cir. 2014).

 9         On appeal, Hanks separately challenges the District Court’s determination

10   that his guilty plea was knowing and voluntary. The District Court issued a

11   certificate of appealability limited to Hanks’s claim of ineffective assistance, and

12   a panel of our Court later denied Hanks’s motion to expand that certificate of

13   appealability. To the extent that Hanks argues his plea was not knowing and

14   voluntary because of the ineffective assistance of his counsel, his argument is

15   resolved by the analysis above. See United States v. Hernandez, 242 F.3d 110,

16   112 (2d Cir. 2001) (“To evaluate a claim that a guilty plea was involuntary or

17   unknowing due to ineffective assistance of counsel, we use the familiar


                                               6
 1   framework established in Strickland.”). To the extent Hanks challenges the

 2   validity of his plea on other grounds, his argument exceeds the scope of the

3    certificate of appealability in this case. Accordingly, we lack jurisdiction to

 4   consider that challenge. See 28 U.S.C. § 2253(c); Smaldone v. Senkowski, 273

 5   F.3d 133, 139 (2d Cir. 2001).

 6         We have considered Hanks’s remaining arguments and conclude that they

 7   are without merit. For the foregoing reasons, the judgment of the District Court

8    is AFFIRMED.

 9                                          FOR THE COURT:
10                                          Catherine O’Hagan Wolfe, Clerk of Court




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