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United States v. Brown

United States District Court, E.D. Virginia, Richmond Division

November 16, 2016

UNITED STATES OF AMERICA
v.
LOUIS A. BROWN

          MEMORANDUM OPINION

          Robert E. Payne, Senior United States District Judge

         Louis A. Brown, a federal inmate then proceeding pro se, submitted a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (§ 2255 Motion, " ECF No. 40).[1] This matter is before the Court after an evidentiary hearing on Brown's claims that he was denied the effective assistance of counsel during his sentencing proceedings. The matter is ripe for disposition. For the following reasons, the Court will grant in part and deny in part Brown's § 2255 Motion.

         I. PROCEDURAL HISTORY

         On February 24, 2011, a grand jury charged Brown with four counts of distribution of cocaine base and one 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 SI 1, ECF No. 12.)

         In the Pre-Sentence Investigation Report ("PSR, " ECF No. 20), the Probation Officer determined that a two-level enhancement for obstruction of justice should apply. (Id. SI 29.) The Probation Officer further believed that, given Brown's post-plea conduct, Brown should not receive a three-point reduction for acceptance of responsibility. (Id. SI 30.) The Probation Officer also concluded that Brown qualified to be sentenced as a career offender. (Id. SI 70.) On October 4, 2011, counsel for Brown (Mary Maguire) filed objections to the Probation Officer's determinations concerning obstruction of justice and acceptance of responsibility. (ECF No. 22.)

         During the sentencing hearing on November 10, 2011, counsel for Brown[2] agreed that he was a career offender. (Nov. 10, 2011 Tr. 4, ECF No. 36.) She objected to the obstruction of justice enhancement and to the denial of a reduction for acceptance of responsibility, and presented testimony, including testimony from Brown himself, to support the objections. (Nov. 10, 2011 Tr. 4-19, 35-44, 51-53, 60-65.) The Court overruled the objections. (Nov. 10, 2011 Tr. 58, 65.) On November 16, 2011, the Court entered judgment against Brown and sentenced him to 240 months of imprisonment. (J. 2, ECF No. 29.) On direct appeal, the United States Court of Appeals for the Fourth Circuit affirmed this Court's judgment. United States v. Brown, 474 F.App'x 244, 244-45 (4th Cir. 2012).

         On June 23, 2013, Brown filed his § 2255 Motion.[3] (§ 2255 Mot. 13.) Brown set forth the following claims for relief:

         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." (Id. at 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.)[4]

         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).)

         By Memorandum Opinion and Order entered on April 14, 2016, the Court dismissed Claims Three (a), Three (c), and Four with prejudice, and dismissed Claim Five without prejudice. United States v. Brown, No. 3:11CR57, 2016 WL 1532241, at *9 (E.D. Va. Apr. 14, 2016) . On April 26, 2016, the Court appointed James Ellenson to represent Brown in further proceedings with respect to Claims One, Two, and Three (b) . (ECF No. 71, at 1.) The Court then scheduled an evidentiary hearing in this matter for August 17, 2016. (ECF No. 75, at 1.)

         Before the evidentiary hearing, Brown explicitly abandoned his challenge to the voluntariness of his guilty plea. (ECF No. 79, at 1.) The Court subsequently determined that the following claims remained to be adjudicated and, because there was to be an evidentiary hearing, the Court designated those claims as "Hearing Claims.'' They are:

         Hearing Claim One:

Trial counsel rendered ineffective assistance of counsel by failing to object to the finding that Brown qualified as a career offender.

         Hearing Claim Two:

Trial counsel rendered ineffective assistance of counsel by providing Brown with copies of the FBI 302s and failing to advise him that he could be charged with obstruction of justice if he mailed copies of those to his mother.

(ECF No. 81, at 7.) The Court dismissed all prior claims. (Id.)

         In an Order entered on August 19, 2016, the Court noted that "one of the issues [addressed at the evidentiary hearing] involves the length of sentence imposed by the Court of Common Pleas of Montgomery County, Pennsylvania (Criminal Division) in Commonwealth of Pennsylvania v. Louis A. Brown, Criminal Docket Number 33-99" (ECF No. 83, at 1), and that the available copy of the sentencing document entered in that case was not a complete copy (id.). Accordingly, the Court ordered the Government to "secure a complete and legible copy of the applicable sentencing document together with all available information, from the Court or the Probation Office, or any other source, pertinent to accurately identifying the sentence that actually was imposed in the Pennsylvania case . . . ." (Id.) The Government submitted those documents on September 15, 2016. (ECF No. 85.) Brown, through counsel, filed a Supplemental Brief Concerning Ineffective Assistance of Counsel and Position of Louis Brown as to Sentencing on October 17, 2016. (ECF No. 86.) The Government filed its Response on October 18, 2016. (ECF No. 87.) Brown filed a Reply on November 7, 2011. (ECF No. 88.) An evidentiary hearing was held on August 26, 2016. This matter is therefore ripe for adjudication.

         II. INEFFECTIVE ASSISTANCE OF COUNSEL

         To demonstrate ineffective assistance of counsel, a convicted defendant must show first, that counsel's representation was deficient and second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient performance prong of Strickland, the convicted defendant must overcome the "''strong presumption' that counsel's strategy and tactics fall within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). The prejudice component requires a convicted defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 4 66 U.S. at 694. In analyzing ineffective assistance of counsel claims, it is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697

         A. Hearing Claim One: Trial Counsel's Performance Regarding ...


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