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United Statesd v. Brand

United States District Court, M.D. Florida, Tampa Division

March 29, 2017

UNITED STATES OF AMERICA
v.
ZAVIEN BRAND

          ORDER

          STEVEN D. MERRYDAY, UNITED STATES DISTRICT JUDGE

         Brand's moves under 28 U.S.C. § 2255 (Doc. 1) to vacate and challenges the validity of his several convictions, for which he is imprisoned for a total of 372 months. An earlier order (Doc. 28) adopts the magistrate judge's report and recommendation and denies Brand's claim asserted in Ground One that trial counsel rendered ineffective assistance by not appealing. Grounds Two, Three, and Four remain. Brand is entitled to no relief on the remaining grounds because each lacks merit and because Brand waived each claim when he pleaded guilty.

         The earlier order summarized this action as follows (Doc. 28 at 1-2 and 5):

1. Brand was charged in a fourteen count superceding indictment for his involvement in a series of incidents where (1) he possessed firearms and ammunition and (2) he sold firearms and cocaine base to an undercover officer. More specifically, Brand faced six counts of distribution of cocaine base, four counts of being a felon in possession of a firearm, and four counts of possessing a firearm in furtherance of a drug crime. Brand pleaded guilty to ten of the counts without the benefit of a plea agreement but he was permitted to withdraw his guilty plea to one of the counts. The magistrate judge determined that “in return for the United States' agreement to dismiss ‘all unresolved counts, ' Brand later elected to plead guilty pursuant to a plea agreement to Count Fourteen.” (Doc. 26 at 2) As a consequence, Brand pleaded guilty to four counts of distribution of cocaine base, four counts of being a felon in possession of a firearm, and two counts of possessing a firearm in furtherance of a drug trafficking crime.
2. Brand was sentenced (1) to concurrent terms of imprisonment for one year on eight of the counts, (2) to a minimum mandatory consecutive term of imprisonment for five years, and (3) to a minimum mandatory consecutive term of imprisonment for twenty-five years, for a total of 372 months.
3. Under the terms of the plea agreement Brand waived his right to appeal his sentence or to challenge it collaterally.
. . . .
Moreover, the decision to enter into a plea agreement after pleading guilty to several counts without the benefit of a plea agreement is supported by former counsel's explanation of the defense's strategy, which changed when Brand changed his mind because he hoped to reduce his sentence by cooperating with the United States. Under the terms of the plea agreement the United States dismissed additional counts (including two counts that carried a minimum mandatory term of twenty-five years' imprisonment), allowed Brand to withdraw the guilty plea to a count that was not the subject of the plea agreement, and agreed to allow Brand to cooperate in hopes of reducing his sentence. The plea agreement - including the requisite appeal waiver - was part of a package both to resolve all of Brand's charges and to limit Brand's potential sentence.

         Each of the three remaining grounds challenges Brand's 25-year minimum mandatory sentence. Brand (1) challenges the district court's jurisdiction to impose a 25-year minimum mandatory sentence and claims the indictment was allegedly faulty (Ground Two) and (2) challenges counsel's effectiveness during both the plea negotiation and the sentencing (Grounds Three and Four). Brand's guilty plea forecloses each challenge.

         GUILTY PLEA

         Tollett v. Henderson, 411 U.S. 258, 267 (1973), holds that a guilty plea waives a non-jurisdictional defect:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

         This waiver of rights precludes most challenges to the conviction. “[W]hen the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569 (1989). See also United States v. Patti, 337 F.3d 1217, 1320 (11th Cir. 2003) (“Generally, a voluntary, unconditional guilty plea waives all non-jurisdictional defects in the proceedings.”) and Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992) (“A defendant who enters a plea of guilty waives all non-jurisdictional challenges to the constitutionality of the conviction, and only an attack on the voluntary and knowing nature of the plea can be sustained.”). A guilty plea waives a claim based on a pre-plea event, including a claim of ineffective assistance of counsel. Wilson, 962 F.2d at 997. Consequently, the entry of a guilty plea waives a claim that occurred before entry of the plea, including both a substantive claim and a purported failing of counsel but neither a jurisdictional challenge nor a voluntariness challenge to the plea.

         INEFFECTIVE ...


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