United States District Court, E.D. Virginia, Richmond Division
Robert E. Payne Senior United States District Judge
Louis A. Brown, a federal inmate proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion, " ECF No. 40). Brown contends that his counsel was ineffective both as to the plea that he entered (guilty) and as to the sentencing process. Specifically, Brown demands relief because:
Claim One: ''Petitioner's guilty plea was not knowing, intelligent, and voluntary, where it was tendered under misadvice of counsel, who erroneously insisted Petitioner was a career offender; and thus, facing a 'mandatory minimum sentence' or 'life imprisonment.' Counsel's 'gross misinformation about law' was tantamount to no counsel at all during critical stage of proceedings, i.e., constitutionally ineffective assistance of counsel." (§ 2255 Mot. 4.)
Claim Two: "That in light of intervening Supreme Court authority (Carachuri-Rosendo [v. Holder, 560 U.S. 563 (2010)], in existence prior to guilty plea), that has superseded controlling Fourth Cir. Precedent-remanding Simmons [v. United States, 649 F.3d 237 (4th Cir. 2011)] which in turn superseded [United States v.] Harp [406 F.3d 242 (4th Cir. 2005)]-defining qualifying 'prior offense' for the purpose of career offender as one 'punishable by imprisonment for more than one year, ' Petitioner's counsel must be found as constitutionally ineffective where [s]he encouraged Petitioner to tender a guilty plea under the erroneous presumption that he was a career offender (i.e., a failure to investigate), U.S.C.A. 6th. (Id. at 5.)
Claim Three: "Trial counsel was constitutionally ineffective due to (1) her failure to raise proper objections and or motion the Court in opposition to enhancements for 'obstruction of justice' imposed pursuant to [United States Sentencing Guideline] § 3C1.1, and the Government's joint motion seeking to deny Petitioner's three point reduction for 'acceptance of responsibility'; and (2) that counsel had a conflict of interest, and therefore, could not represent the Petitioner in obstruction conduct (i.e., that Pet. acted with aid and advice of counsel), U.S.C.A. 5th & 6th. (Id. at 7.)
Brown has filed a timely motion for leave to amend his § 2255 Motion ("Motion to Amend, '7 ECF No. 42), which the Court will grant. Brown raises the following two claims:
Claim Four: "Trial counsel was constitutionally ineffective due to her failure to motion the Court pursuant to the 'Fair Sentencing Act of 2010' ["FSA"] resulting in reductions in the Guidelines viz. [United States Sentencing Guideline] § 2D1.1 for cocaine base. Where permanent amendments implementing underlying act were promulgated on April 6, 2011; effective as of Nov. 1, 2011. But, that Petitioner's sentencing hearing occurred on November 15, 2011, without benefiting from any of the Act's new proscriptions, e.g., like the crack cocaine to powder cocaine newly established 20 to 1 ratio; U.S.C.A. 6th." (Mem. Supp. Mot. to Amend 2, ECF No. 4 3.)
Claim Five: "Trial counsel was constitutionally ineffective due to her failure to investigate, motion the Court, and or object to sentencing Court['s] alleged 'correction' of previously imposed term of supervised release (increased by 1 yr.); and further ineffective due to her failure to file a notice of appeal, and actual appeal of supervised release revocation proceeding after being requested to do so, where the alleged 'correction' has: (1) effect[ed] a substantive change to the original punishment and related judgment, (2) imping[ed] movant's 'fundamental right to finality of judgment' at the time original term was entered, and (3) violated movant's right to be free from double jeopardy in punishment, U.S.C.A. 5th & 6th." (Id. at 5 (alteration in original).)
The Government has responded, asserting that Brown's claims lack merit. (ECF No. 58.) Brown has filed a Reply. (ECF No. 61.)
By Memorandum Order entered on July 31, 2015, the Court noted that it could not "conclude from the record before it whether or not counsel was ineffective for failing to challenge Brown's career offender designation." (ECF No. 64, at 3.) Accordingly, the Court directed counsel for the Government to "file a supplemental response addressing whether Brown's 1999 conviction was properly counted as a predicate conviction for career offender status, and whether Brown's counsel was ineffective for failing to challenge the career offender designation." (Id.) The Court also directed that Brown should submit any supplemental response he wished to file. (Id.) The Government filed its supplemental response on August 20, 2015 ("Gov't's Suppl. Resp., " ECF No. 65). The Court received Brown's supplemental response on September 8, 2015 ("Pet'r's Suppl. Resp, " ECF No. 67). For the reasons stated below, the Court will appoint counsel to represent Brown for further proceedings on Claims One, Two, and a portion of Claim Three, and dismiss the remaining claims.
I. PROCEDURAL HISTORY
On February 24, 2011, a grand jury charged Brown with four (4) counts of distribution of cocaine base and one (1) count of possession with intent to distribute cocaine base. (Indictment 1-4, ECF No. 1.) On June 27, 2011, Brown entered into a Plea Agreement and pled guilty to Count One, which charged him with distribution of cocaine base. (Plea Agreement ¶ 1, ECF No. 12.)
The Plea Agreement reflected that Brown understood that the maximum penalty for Count One was "twenty years of imprisonment, a fine of $1, 000, 000, a special assessment, and three years of supervised release." (Plea Agreement ¶ 1.) Brown agreed that the Court would determine his actual sentence "in accordance with Title 18, United States Code, Section 3553(a), " and that any estimate he may have received from counsel was "a prediction, not a promise." (Id. ¶ 5.) Brown understood that he could not withdraw his guilty plea based upon the actual sentence imposed. (Id.)
During his Rule 11 proceedings, Brown confirmed his understanding regarding the maximum penalty for Count One. (June 27, 2011 Tr. 5.) He stated that he had discussed the Sentencing Guidelines with counsel. (June 27, 2011 Tr. 6.) Brown understood that the Court would consider the applicable Sentencing Guidelines in determining his sentence. (June 27, 2011 Tr. 19-22.) He confirmed that any ...