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Brown v. United States

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

January 3, 2018




         This matter is before the Court on Allen Andre Brown's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. ECF No. 47. Petitioner's § 2255 motion advances a single claim alleging ineffective assistance of counsel based on defense counsel's performance at sentencing. The Government failed to file a timely brief in opposition, and after Petitioner objected to the Government's late-filed responsive brief, the Government filed a motion for leave to file its brief out-of-time. ECF No. 53. For the reasons set forth below, Petitioner's § 2255 motion is DENIED on the merits. The Court also DENIES the Government's motion seeking to file a late brief as the Government fails to demonstrate excusable neglect for its late filing. However, the Court alternatively finds that even if the Government's late-filed brief, and Petitioner's subsequent reply brief, are both considered, the Court's ruling denying Petitioner's § 2255 motion remains unchanged as, regardless of the papers considered, Petitioner's § 2255 motion lacks merit.


         Pursuant to a written plea agreement, Petitioner entered a plea of guilty to a single count criminal information charging him with conspiracy to distribute narcotics, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A) and 841(b)(1)(B). ECF No. 16. In advance of sentencing, a written Presentence Investigation Report ("PSR") was prepared, and the PSR recommended that the Court classify Petitioner as a "Career Offender" under the federal sentencing Guidelines in light of his two prior felony convictions for "controlled substance offense[s]." U.S.S.G. § 4B1.1; see ECF No. 29. Based on the quantity of drugs involved in the instant case, as well as Petitioner's extensive criminal record, the advisory Guideline calculation in the absence of such Career Offender designation would have been as follows: Offense Level 31, [1] Criminal History Category V, with an advisory Guideline range of 168-210 months imprisonment.[2] With the application of the Career Offender designation, Petitioner's advisory Guideline calculation was as follows: Offense Level 34, [3] Criminal History Category VI, with an advisory Guideline range of 262-327 months imprisonment.

         At sentencing, the Court overruled an objection to the Guideline calculation advanced by defense counsel, [4] adopted the PSR as written (including the Career Offender Guideline range of 262-327 months), and heard argument from counsel for both parties on the § 3553(a) statutory sentencing factors. Petitioner's counsel argued for a variance sentence substantially below the low-end of the advisory Guideline range, asserting that the Career Offender designation overstated the seriousness of Petitioner's criminal history because one of the two drug offenses that resulted in the Career Offender designation was distribution of drugs by accommodation-that is, sharing drugs with another person rather than selling drugs for range in the absence of the Career Offender designation. Such a profit. See ECF No. 31, at 1-2. The Court agreed with defense counsel that Petitioner's accommodation offense "was a crime involving lessor culpability than a typical drug trafficking crime, thus supporting a variance below the low-end of the Career Offender Guideline range." ECF No. 35. For this reason, considered in conjunction with other mitigating factors, the Court imposed a variance sentence of 222 months imprisonment. ECF No. 34.

         Petitioner did not appeal his sentence or conviction. Prior to filing the instant § 2255 motion, Petitioner filed a previous § 2255 motion. ECF No. 38. Such initial § 2255 motion was dismissed by this Court without a ruling on the merits and without prejudice to Petitioner's right to file another timely § 2255 motion. ECF No. 43. Petitioner subsequently filed the instant timely § 2255 motion, ECF No. 47, and such motion is now ripe for adjudication.


         A federal prisoner, in custody, may collaterally attack his sentence or conviction by moving the district court "to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). To obtain such relief, a petitioner must prove by a preponderance of the evidence that his sentence or conviction was "imposed in violation of the Constitution or laws of the United States, " that the district court "was without jurisdiction to impose such sentence, " that the sentence exceeds "the maximum authorized bylaw, " or that the sentence or conviction is "otherwise subject to collateral attack." Id.; see Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). Because a § 2255 motion "is ordinarily presented to the judge who presided at the original conviction and sentencing . . . the judge's recollection of the events at issue" may inform the resolution of the motion. Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977).

         A § 2255 motion is, in essence, a statutory federal habeas corpus action that enables a petitioner to collaterally attack his sentence or conviction through the filing of a new proceeding, as contrasted with a direct appeal.[5] United States v. Hadden, 475 F.3d 652, 663 (4th Cir. 2007). With limited exceptions, a petitioner advancing new claims asserted for the first time in a § 2255 motion "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982) . The "higher hurdle" applies because, once a Petitioner's opportunity to pursue a direct appeal has been waived or exhausted, there is "a final judgment [that] commands respect." Id. at 164-65.

         A § 2255 petitioner need not, however, overcome such "higher hurdle" to advance a freestanding claim of ineffective assistance of counsel, which is properly asserted for the first time in a § 2255 motion. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (“[I]t is well settled that 'a claim of ineffective assistance should be raised in a 28 U.S.C. § 2255 motion in the district court rather than on direct appeal, unless the record conclusively shows ineffective assistance.'" (quoting United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992))). To obtain relief based on an allegation of ineffective assistance, a petitioner must establish both: (1) that counsel's performance was so deficient that it fell below an objective standard of reasonableness; and (2) that counsel's inadequate performance caused the petitioner prejudice. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

         Satisfying the first prong of Strickland requires a petitioner to establish that “counsel made errors so serious that counsel was not functioning as the * counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. The second prong of Strickland requires a petitioner to affirmatively prove prejudice, " which requires a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 693-94.WA reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. If a petitioner fails to prove either of the two prongs of the Strickland test, a district court need not evaluate the other prong. Moore v. Hardee, 723 F.3d 488, 500 (4th Cir. 2013).


         Petitioner's § 2255 motion advances a single ground for relief, alleging that defense counsel was ineffective at sentencing for failing to file a motion/objection challenging Petitioner's classification as a Career Offender. More specifically, Petitioner asserts that because one of his prior Virginia state convictions was for drug distribution "by accommodation, " such offense does not qualify as a "controlled substance offense" under the federal sentencing Guidelines. As explained below, neither state law nor federal law support Petitioner's position, and his ineffective assistance claim therefore fails.

         A. ...

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