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Brown v. United States

United States District Court, E.D. Tennessee, Chattanooga

December 6, 2019

ALAN L. BROWN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          Christopher H. Steger, Magistrate Judge.

          MEMORANDUM OPINION

          TRAVIS R. MCDONOUGH, UNITED STATES DISTRICT JUDGE.

         Before the Court is Petitioner Alan L. Brown's motion to vacate, set aside, or correct his sentence filed pursuant to Title 28, United States Code, Section 2255 (Doc. 1 in No. 1:19-cv-75; Doc. 114 in No. 1:17-cr-117). For the following reasons, Petitioner's motion will be DENIED IN PART, and the Court will set an evidentiary hearing to resolve certain issues raised in Petitioner's motion.

         I. BACKGROUND

         On August 22, 2017, a grand jury returned an indictment charging Petitioner with: (1) one count of conspiracy to distribute heroin, in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(B), and 846; (2) two counts of distribution of heroin, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C); and (3) one count of possession of heroin with the intent to distribute, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C). (Doc. 1 in No. 1:17-cr-117.)

         On October 16, 2017, Petitioner executed a plea agreement, in which he agreed to plead guilty to one count of conspiracy to distribute heroin, in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(B), and 846. (Doc. 32 in No. 1:17-cr-117.) As part of the plea agreement, the Government agreed to dismiss the remaining counts against Petitioner. (Id. at 1.) The plea agreement also provides:

No promises have been made by any representative of the United States to the defendant as to what the sentence will be in this case. Any estimates or predictions made to the defendant by defense counsel or any other person regarding any potential sentence in this case are not binding on the Court, and may not be used as a basis to rescind this plea agreement or withdraw the defendant's guilty plea(s). The defendant understands that the sentence in this case will be determined by the Court after it receives the presentence report from the United States Probation Office and any information presented by the parties. The defendant acknowledges that the sentencing determination will be based upon the entire scope of the defendant's criminal conduct, the defendant's criminal history, and pursuant to other factors and guidelines as set forth in the Sentencing Guidelines and the factors set forth in 18 U.S.C. § 3553.

(Id. at 5.) According to Petitioner, however, his attorney told him that if he pleaded guilty, he would only receive a five-year term of imprisonment. (Doc. 1, at 4, 15‒16, in Case No. 1:19-cv-75.) Petitioner further represents that his counsel was in a rush to have him sign the plea agreement and that he did so without reading it because he trusted his attorney. (Id. at 3, 16.)

         On November 1, 2017, United States Magistrate Judge Christopher H. Steger conducted Petitioner's rearraignment hearing. (Doc. 116 in No. 1:17-cr-117.) During the hearing and while under oath, Petitioner represented that: (1) he was satisfied with his attorney's representation; (2) he had adequate time to read and discuss the plea agreement with his attorney; (3) he understood the terms of his plea agreement; (4) no one promised or suggested that he will receive a lighter sentence or any other form of leniency by pleading guilty; (5) he understood that the sentence imposed by the district court judge may be different from any estimate of the sentence provided by his attorney; (6) he understood that his sentence would be determined by the district court judge and that his sentence may be more or less severe than the advisory guideline sentence calculated under the United States Sentencing Guidelines; and (7) he understood he would not be able to withdraw his guilty plea if the sentence imposed was more severe than he expected. (See generally id.)

         After United States District Court Judge Curtis Collier accepted Petitioner's guilty plea, the Court held a sentencing hearing on March 8, 2018. (Doc. 117 in No. 1:17-cr-117.) At the sentencing hearing, Judge Collier calculated Petitioner's advisory guidelines range as 97 to 121 months' imprisonment[1] and sentenced Petitioner to 97 months' imprisonment, followed by five years of supervised release. (Id. at 3‒4, 11‒12.) In the present motion, Petitioner claims that his counsel erred in failing to object to the application of certain criminal history points in calculating his advisory guidelines range and that this failure “has caused adverse effects to [his] sentence, custody, and classification with the Bureau of Prisons.”[2] (Doc. 1, at 5, in No. 1:19-cv-75.) Petitioner did not directly appeal the Court's calculation, duration, or legality of his sentence, but he now represents that he instructed his attorney to file an appeal and that his attorney simply said he “would look into it.” (Id. at 6, 16.)

         On March 7, 2019, Petitioner filed this timely motion to vacate, set aside, or correct his sentence pursuant to Title 28, United States Code, Section 2255. (Id.) In his motion, he asserts that he received ineffective assistance of counsel because his counsel did not: (1) adequately advise him regarding the consequences of pleading guilty; (2) object to the criminal history points attributed to him for the purpose of calculating his advisory guidelines range; and (3) file an appeal on his behalf despite his instructions to do so. (See generally id.) Petitioner's motion is now ripe for the Court's review.

         II. STANDARD OF LAW

         To obtain relief under Title 28, United States Code, Section 2255, a petitioner must demonstrate: “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). The petitioner “must clear a significantly higher hurdle than would exist on direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).

         To collaterally attack a conviction based on ineffective assistance of counsel, Petitioner must establish “that [his] lawyers performed well below the norm of competence in the profession and that this failing prejudiced [his] case.” Caudill v. Conover, 881 F.3d 454, 460 (6th Cir. 2018) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The performance inquiry requires the defendant to “show that counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. The prejudice inquiry requires the 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.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” See Rodriguez-Penton v. United States, 905 F.3d 481, 489 (6th Cir. 2018). However, there is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Therefore, courts should resist “the temptation to rely on hindsight . . . in the context of ineffective assistance claims.” Carson v. United States, 3 Fed.Appx. 321, 324 ...


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