United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski United States District Judge.
Franklin Brown, a federal inmate proceeding pro se, has filed
both a motion and amended motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. Brown
alleges numerous claims for relief, including an assertion
that counsel provided ineffective assistance by failing to
note an appeal when asked. By order entered June 23, 2016,
the court found that it was unable to resolve the issue of
whether counsel was ineffective for failing to file an appeal
on the existing record and ordered an evidentiary hearing.
Following that hearing, and after reviewing the record and
briefs from Brown and the government, the court concludes
that Brown has not stated any meritorious claim for relief
under § 2255 and that the government's motion to
dismiss must be granted.
August 1, 2013, a federal grand jury charged Brown in a
three-count indictment with: possessing marijuana with the
intent to distribute, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(D) ("Count One"); possessing a
firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1) ("Count
Two"); and possessing a firearm while a convicted felon,
in violation of 18 U.S.C. § 922(g)(1) ("Count
Three"). Indictment 1 at 3-4, 5:13-cr-17, ECF No. 3.
These charges stemmed from a car chase between Brown and the
Virginia State Police when the police attempted to stop
Brown's vehicle, and resulted in the discovery of $7,
630.00 in cash and 73.11 grams of marijuana in a backpack
that Brown threw from the car along with a handgun, and $761
and .53 grams of marijuana on his person. Statement of Facts
¶ 1, 5:13crl7, ECF No. 41. On August 15, 2013, Brown was
arraigned and appointed counsel. Brown was released on bond
and a trial date was set for October 21, 2013. The government
filed an information, pursuant to 21 U.S.C. § 851,
seeking an enhanced sentence based on two prior Virginia
felony drug convictions. Information 1 at 1, 5:13crl7, ECF
No. 23. On October 1, 2013, defense counsel filed a motion to
continue the jury trial and the court granted that motion
setting the trial for December 16, 2013.
December 3, 2013, Brown and the government entered into a
plea agreement in which Brown agreed to plead guilty to
Counts One and Two. A plea hearing was scheduled for January
December 5, 2013, a federal grand jury charged Brown and six
codefendants in a separate indictment with conspiring to
distribute and possess with the intent to distribute cocaine
and 500 grams or more of methamphetamine, in violation of 21
U.S.C. § 846. Indictment 2 at 1- 2, 5:13cr30, ECF No. 3.
On December 20, 2013, Brown was arraigned and released on
bond. He was appointed counsel and a trial date was set for
February 24, 2014. As a result of the new federal indictment,
the court canceled the guilty plea hearing in the prior case
in 2014, Brown retained counsel, who substituted as counsel
of record in both cases. The government filed a § 851
information in the second case (5.T3-cr-00030), seeking an
enhanced sentence based on Brown's two prior felony drug
convictions. Information 2 at 1, 5:13cr30, ECF No. 108.
Defense counsel requested, and on January 6, 2014, the court
granted a motion to continue the trial and set a new trial
date for May 12, 2014. On April 22, 2014, the trial date
again was continued on defense motion to July 21, 2014.
1, 2014, Brown entered into a new plea agreement involving
both cases pursuant to Rule 11(c)(1)(C), in which he pleaded
guilty to Count Two of the first indictment, charging him
with possessing a firearm in furtherance of drug trafficking
activities, and Count One of the second indictment, charging
him with participation in a drug trafficking conspiracy. Plea
Agree. 2 at 1-2, 5:13cr30, ECF No. 234. The plea agreement
provided for an agreed-upon sentence of 216 months. Pursuant
to the plea agreement, the government agreed to dismiss the
§ 851 enhancement and the remaining counts. Brown agreed
to waive the right to appeal and collaterally attack the
judgment and sentence, except for claims of ineffective
assistance of counsel.
22, 2014, at the guilty plea hearing, both defense counsel
and the government requested that the original plea agreement
be withdrawn. Plea Hr'g Tr. 2-3, 5:13cr30, ECF No. 385.
Defense counsel stated that he had reviewed possible defenses
with Brown and discussed various options going forward
including going to trial and pleading guilty. Id. at
11. Brown affirmed that he had received a copy of the second
plea agreement, read it, reviewed every page with counsel and
discussed the pros and cons. Id. at 12-13. Brown
affirmed that he was "fully satisfied with the advise
and representation [his attorney] ha[d] given [him] in this
case." Id. at 29.
government reviewed the essential terms of the plea agreement
on the record, noting that it was a binding plea under Rule
11(c)(1)(C), requiring a 216 month sentence. Id. at
14-15. The government noted that for Count Two, possessing a
firearm in furtherance of a drug trafficking crime, Brown
faced a mandatory sentence of five years' imprisonment to
be served consecutively to any other sentence imposed.
Id. at 15. The government also explained that Brown
faced a mandatory minimum of 20 years and maximum of life for
the conspiracy count with the § 851 enhancement.
Id. at 16. Brown affirmed that he agreed with the
terms of the plea agreement and wanted the court to accept
it. Id. at 19. The court reviewed the elements of
the charges against Brown, noting that for Count Two, the
government would have to prove that he committed a drug
trafficking crime and used or carried a firearm in
furtherance thereof, and for Count One, that two or more
people agreed to engage in drug-related crimes, that Brown
knew of the conspiracy, knowingly and voluntarily
participated in it, and that it was reasonably foreseeable to
Brown that the conspiracy involved 500 grams or more of a
mixture and substance containing methamphetamine.
Id. at 20-21. Brown affirmed that he understood all
of the elements that the government would have to prove.
Id. at 21.
affirmed his understanding that by pleading guilty, he gave
up his right to appeal and to collaterally attack his
You give up your right to appeal except for any matter which
cannot be waived as a matter of law. Now I can tell you that
this plea agreement of 216 months is within the Court's
power to impose because the Court can impose a sentence in
this case of up to life in prison. So if I decided to accept
the plea agreement and impose a sentence of 216 months, you
would have no right to appeal that under this waiver of your
right to appeal set forth in the plea agreement.
Id. at 27-28. Brown affirmed that no one had made
any promises to him other than those contained in the Plea
Agreement to cause him to plead guilty and that no one had
coerced him to plead guilty. Id. at 19. The court
found that Brown was fully competent and capable of entering
an informed plea and that he was aware of the nature of the
charges against him and the consequences of his plea.
Id. at 37-38. The court took the matter under
advisement pending preparation of a Presentence Investigation
Report ("PSR") in anticipation of sentencing.
Id. at 38.
filed a sentencing memorandum requesting that the court
accept Brown's plea and sentence him to 216 months. Sent.
Mem. at 14, 5:13cr30, ECF No. 327. Counsel noted, however,
that Brown objected to his criminal history score which Brown
calculated to be a category II, with an offense level of 35
resulting in an advisory guideline range of 188 to 235 months
for the distribution offense. Id. at 2. Counsel
argued that Brown should not be classified as a career
offender because his two prior drug convictions were part of
the same conduct and conspiracy for which he was being
sentenced in federal court. Id. at 11-12. The
government responded in a sentencing memorandum arguing that
Brown's categorization as a career offender was
appropriate because his two prior drug convictions occurred
in 1998, before the drug conspiracy began, which lasted from
2001 to 2013. Gov't Sent. Mem. at 10-11, 5:13cr30, ECF
recommended a base offense level of 38 because it concluded
that the conspiracy involving more than 15 kilograms of
methamphetamine, pursuant to United States Sentencing
Guideline ("U.S.S.G.") § 2D 1.1 (2013). PSR
¶ 27, ECF No. 332. The PSR also recommended that Brown
be classified as a career offender, which carries a base
offense level of 37, but because the base offense level for
his offense conduct was greater, the career offender base
offense level did not apply. U.S.S.G. § 4B1.1. Brown
received a three-point reduction for acceptance of
responsibility, for a total offense level of 35, with a
criminal history category of VI, which resulted in a
guideline imprisonment range of 292 to 365 months with an
additional 60-month consecutive sentence as a result of the
weapons conviction. Id. ¶¶ 65, 66, 67.
Neither the government nor defense counsel filed any
sentencing hearing was held on November 5, 2014. At the
hearing, defense counsel withdrew the objection raised in his
sentencing memorandum regarding Brown's career offender
status and criminal history score. Sent. Hr'g Tr. at 4,
5:13cr30, ECF No. 384. Brown stated to the court that he
wanted the court to accept the plea agreement and sentence
him to 216 months. Id. at 24. The court accepted the
plea and sentenced Brown to 156 months on Count One of
5:13cr30 and 60 months on Count Two of 5:13crl7, to run
consecutively, for a total of 216 months. Id. at 26.
Brown did not appeal.
August 4, 2016, the court held an evidentiary hearing
regarding Brown's claim in his § 2255 motion that
counsel failed to note an appeal on his behalf. At the
hearing, Brown testified that he talked to counsel directly
after his sentencing hearing and asked counsel to appeal.
According to Brown, counsel responded that Brown had waived
his right to appeal. Brown sent a number of letters to his
counsel following sentencing, but admitted at the evidentiary
hearing that he never requested in writing that counsel note
an appeal. Brown testified that he had wanted counsel to
appeal some issues that counsel did not address at
sentencing, such as his career offender status, but also
stated that he understood that he had waived the right to
appeal by pleading guilty.
counsel also testified at the evidentiary hearing. Counsel
stated that Brown never requested that he file an appeal at
any time. He testified that after sentencing, Brown did not
mention an appeal, but thanked him for his representation and
then Brown briefly talked to his father before being led out
of the courtroom. Counsel further testified that he had gone
over the plea agreement in detail with Brown, that from his
perspective Brown knew that he was giving up his right to
appeal by pleading guilty and that he had no reason to
believe that Brown would want to file an appeal because he
did not believe that Brown had any meritorious grounds for an
appeal. In response to a letter from Brown which did not
request that counsel file an appeal, counsel wrote, "As
we previously discussed I don't believe that there are
any appealable issues." § 2255 Mot. Ex. J at 3,
5:13cr30, ECF No. 397-11.
state a viable claim for relief under § 2255, a
petitioner must prove: (1) that his sentence was
"imposed in violation of the Constitution or laws of the
United States;" (2) that "the court was without
jurisdiction to impose such a sentence;" or (3) that
"the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack." 28
U.S.C. § 2255(a). Brown bears the burden of proving
grounds for a collateral attack by a preponderance of the
evidence. Jacobs v. United States, 350 F.2d 571, 574
(4th Cir. 1965).
INNEFECTIVE ASSISTANCE OF COUNSEL
defendants have a Sixth Amendment right to effective legal
assistance. Strickland v. Washington. 466 U.S. 668,
687 (1984). The proper vehicle for a defendant to raise an
ineffective assistance of counsel claim is by filing a §
2255 motion. United States v. Baptiste. 596 F.3d
214, 216 n.l (4th Cir. 2010). However, ineffective assistance
claims are not lightly granted; "[t]he benchmark for
judging any claim of ineffectiveness must be whether
counsel's conduct so undermined the proper functioning of
the adversarial process that the [proceeding] cannot be
relied on as having produced a just result."
Strickland, 466 U.S. at 686. Accordingly, in order
to establish a viable claim of ineffective assistance of
counsel, a defendant must satisfy a two-prong analysis
showing both that counsel's performance fell below an
objective standard of reasonableness and establishing
prejudice due to counsel's alleged deficient performance.
Id. at 687. When considering the reasonableness
prong of Strickland, courts apply a "strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance."
Id. at 689; Gray v. Branker. 529 F.3d 220,
228-29 (4th Cir. 2008). Counsel's performance is judged
"on the facts of the particular case, " and
assessed "from counsel's perspective at the
time." Strickland. 466 U.S. at 689, 690.
satisfy the prejudice prong of Stickland, a
defendant must show that there is a reasonable probability
that, but for counsel's unprofessional error, the outcome
of the proceeding would have been different. Id. at
694. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Id. Brown's claims of ineffective assistance of
counsel do not satisfy Strickland's stringent
first claims that he received deficient representation
because counsel failed to assert a violation of his speedy
trial rights under 18 U.S.C. § 3161 and the Sixth
Amendment. Brown was first indicted in case 5:13crl7 on
August 1, 2013. He pleaded guilty to the second plea
agreement on July 22, 2014. Accordingly, Brown argues that he
faced a 356-day delay ...