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Brown v. United States

United States District Court, M.D. Florida, Fort Myers Division

September 9, 2019


          OPINION AND ORDER [1]


         Before the Court is Petitioner Markeith Brown's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody (Doc. 1; Cr-Doc. 57)[2] and Memorandum of Law in Support (Doc. 2; Cr-Doc. 58). The Government opposes the motion (Doc. 9), to which Brown has filed a reply (Doc. 11). The Court held an evidentiary hearing on May 1, 2019, at which Brown was presented and represented by counsel. (Doc. 25). For the below reasons, the Court denies his motion.


         On March 5, 2014, a federal grand jury indicted Brown for knowingly possessing with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1). (Cr-Doc. 1). This offense carried a penalty of five to forty years imprisonment. The Court appointed Russell Rosenthal, an Assistant Federal Defender (“Counsel”), to represent Brown. (Cr-Doc. 15).

         On September 30, 2014, Brown pled guilty. Under the plea agreement, Brown

expressly waive[d] the right to appeal [his] sentence on any ground, including the ground that the Court erred in determining the applicable guidelines range pursuant to the United States Sentencing Guidelines, except (a) the ground that the sentence exceeds the defendant's applicable guidelines range as determined by the Court pursuant to the United States Sentencing Guidelines; (b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that the sentence violates the Eighth Amendment to the Constitution[.]

(Cr-Doc. 22 at 14 (emphasis original)). In exchange, the Government agreed to recommend a three-level decrease for Brown's acceptance of responsibility, move for a downward departure because of his cooperation, and not to oppose a low-end guidelines sentence. (Cr-Doc. 22 at 3-5). The Court accepted Brown's plea and adjudicated him guilty.

         On July 6, 2015, the Court sentenced Brown to 120 months' imprisonment, lower than the calculated guidelines range. (Cr-Doc. 47). The Presentence Investigation Report (“PSR”) scored his base offense level at 26. (Cr-Doc. 39 at ¶ 26). Although no specific offense characteristic applied, the PSR found Brown a career offender under U.S.S.G. § 4B1.1 because of his prior drug convictions. (Cr-Doc. 39 at ¶ 32). The career offender status raised the offense level to 34. (Cr-Doc. 39 at ¶ 32). Then, with a three- level decrease for accepting responsibility, Brown's total offense level was 31. (Cr-Doc. 39 at ¶¶ 34-36). Brown's criminal history points led to a Category IV designation. But, because of his career offender status, the category jumped to VI. (Cr-Doc. 39 at ¶¶ 48-50). An offense level of 31 and a criminal history category VI gave Brown a guidelines range of 188 to 235 months. (Cr-Doc. 39 at ¶ 89). Brown objected to neither the PSR's factual accuracy nor guidelines calculation. (Cr-Doc. 64 at 7).

         Brown did, however, file a sentencing memorandum. (Cr-Doc. 45). He argued a criminal history category of VI overrepresented his past. The Court agreed and departed downward one category. Brown also moved for a variance under 18 U.S.C. § 3553(a) because of his family history, drug addiction, rehabilitative intent, and cooperation. The Court agreed and varied downward. Coupling these decreases with the Government's U.S.S.G. § 5K1.1 motion, the Court sentenced Brown to 120 months' imprisonment. This sentence was a 68-month reduction from the low-end of the guidelines range.

         The Court entered Judgment on July 7, 2015. (Cr-Doc. 52; Cr-Doc. 53). Brown never appealed. He self-surrendered about two months later.

         Brown now moves under 28 U.S.C. § 2255 for collateral relief. (Doc. 1; Doc. 2). He raises two grounds. In Ground One, Brown alleges Counsel rendered constitutionally ineffective assistance by not filing a notice of appeal after Brown told him to do so. His motion also identifies the grounds he wished to appeal. In Ground Two, Brown alleges Counsel failed to object to sentencing enhancements. He requests “remand of his entire involuntary plea, based on the Government's misconduct, and counsel's ineffectiveness and below the standard of representation.” (Doc. 2 at 11). The Government opposes any relief.


         A habeas petition may not be filed more than one year from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). Brown's judgment of conviction became final on July 21, 2015. He thus had until the year after to file a § 2255 motion, and he did so with nearly two months to spare. The Government concedes Brown's motion to be timely. (Doc. 9 at 3).


         A district court must hold an evidentiary hearing on a habeas petition “unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief[.]” 28 U.S.C. § 2255(b). But “a district court is not required to hold an evidentiary hearing where the petitioner's allegations are affirmatively contradicted by the record, or the claims are patently frivolous[.]” Aaron v. United States, 291 F.3d 708, 715 (11th Cir. 2002 (citation omitted); see also Gordan v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (“An evidentiary hearing is not required whenever a petitioner asserts a claim of ineffective assistance under section 2255.”). The Court found Ground One could not be answered on the record and granted an evidentiary hearing on that claim only. (Doc. 13).


         A prisoner in federal custody may move for his sentence to be vacated, set aside, or corrected on four grounds: (1) the imposed sentence violates the Constitution or laws of the United States; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence was over the maximum authorized by law; or (4) the imposed sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). A § 2255 motion “may not be a surrogate for a direct appeal.” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (stating § 2255 relief is “reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice” (internal quotations omitted)). The petitioner bears the burden of proof on a § 2255 motion. Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015) (citation omitted).

         Generally, “claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003). This procedural default rule “is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments.” Id. There is an exception: ineffective assistance of counsel claims. Massaro, 538 U.S. at 504 (holding the failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255).

         Criminal defendants have a Sixth Amendment right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). A defendant claiming ineffective assistance of counsel must show that (1) “counsel's representation fell below an objective standard of reasonableness”; and (2) the deficient performance resulted in prejudice. Id. at 687; seeRoe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (stating the Strickland test applies to claims that counsel was constitutionally ineffective for failing to file a notice of appeal). Failing to show either Strickland prong is fatal. See Kokal v. Sec'y, ...

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