Bland v. United States

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 3