Criminal: Defendant’s ineffective assistance claim fails

Where the defendant argued his attorney rendered ineffective assistance during sentencing, but he could not show the performance was constitutionally deficient or that the result would have been different, his argument was rejected.

Background

In 2016, Nathaniel Powell pled guilty to one count of conspiracy to manufacture, distribute and possess with intent to distribute more than 100 grams of heroin. He now contends that the attorney who represented him at sentencing, Lawrence Woodward, rendered deficient performance because he failed to reasonably investigate the existence and duration of the lease of the apartment where Valerie Wilson said she bought drugs from Powell.

Prong one

Woodward’s performance is not constitutionally deficient. Woodward drew on his experience with how courts actually apply the enhancement in the real world. Since the burden to apply the enhancement was only preponderance of evidence, Woodward felt the government did not face “a heavy lift.” To Woodward, the more important issue was attacking Wilson’s credibility. So, Woodward did that at every turn.

Powell contends the lease would have bolstered those credibility attacks. Maybe so. But the court does not “grade counsel’s performance” like “the critic . . . who points out . . . where the doer of deeds could have done them better.” To the contrary, the court asks only whether the representation provided was constitutionally defective. And failing to make every conceivable argument does not meet that standard.

What’s more, Powell overstates the importance of the lease in opposing the application of the premises enhancement. He says the lease would have “directly contradicted Ms. Wilson’s uncorroborated hearsay testimony.” But that is not correct. While Wilson said that she bought drugs from Powell at the Gateway Drive apartment several times between 2011 and 2016, she did not provide precise dates on which any of the transactions with Powell purportedly occurred, including the transaction during which she allegedly witnessed him receive a heroin delivery.

Wilson also did not say that Powell owned the apartment or that he rented it. Thus, proving that Powell’s ex-girlfriend only rented the apartment in 2016 does not prove that Wilson had not used it with someone else’s permission prior to 2016. In other words, Wilson’s testimony is not incompatible with Powell’s ex-girlfriend’s lease that began in January 2016.

Even if a defendant does not own or lease a premises, moreover, he can maintain it for purposes of the enhancement where he has full access to it and stays there overnight on a regular basis. The government introduced evidence that Powell sold, received and processed drugs in the apartment many times over five years.

Woodward certainly could have investigated who leased or owned the apartment, and such an investigation might have pressed the government to make additional or more detailed arguments in support of the premises enhancement. But such possibilities do not render Woodward’s representation constitutionally deficient. Powell has not met his burden on this first Strickland prong.

Prong two

To establish prejudice under prong two of Strickland, the court determines “whether it is ‘reasonably likely’ the result would have been different.” Here, the record here indicates that the district court would have overruled Powell’s objection to the premises enhancement even if Woodward had investigated Powell’s control of the premises or presented the court with the lease and testimony from the ex-girlfriend.

That statement followed a § 2255 evidentiary hearing that addressed the very evidence that Powell claims should have been introduced at sentencing and at which the parties presented arguments on whether the result would have been different in light of that evidence. So, the district court’s statement was retroactively addressing the precise issue that is the subject of Powell’s ineffective assistance of counsel claim.

Relevant to the Strickland prong two analysis, such statements provide valuable and informed insight into what the court would have done had Woodward acted as Powell claims he should have. Lastly but importantly, the district court’s statements seem grounded in its credibility findings as to Wilson.

Affirmed.

Concurring opinion

Diaz, J., concurring in the judgment:

Because I agree with my colleagues that Powell can’t show prejudice, I join in the judgment. But I write briefly to make two points.

First, as to prejudice, I’d rest solely on the majority’s conclusion that there isn’t a “reasonable probability that the district court would have sentenced Powell differently even if it had declined to apply the premises enhancement.” Second, finding no prejudice, I’d decline to address deficient performance.

United States v. Powell, Case No. 21-6992, Apr. 10, 2025. 4th Cir. (Quattlebaum), from EDVA at Norfolk (Allen). Morgan VanGilder Maloney for Appellant. Vetan Kapoor for Appellee. VLW 025-2-130. 20 pp.