Steele v. United States of America

Filing 9

MEMORANDUM OPINION. Signed by Judge R David Proctor on 1/9/2015. (AVC)

FILED
2015 Jan-09 PM 02:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRIAN KEITH STEELE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No.:
Criminal:

2:13-cv-8053-RDP
2:12-cr-0068-RDP-MHH

MEMORANDUM OPINION
The court has before it Brian Keith Steele's Motion to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255 (Doc. #1), filed on November 26, 2013. Pursuant to the court's orders
of February 6, 2014 (Doc. #3) and March 6, 2014 (Doc. #5), the United States Government filed a
Response (Doc. #5) to Steele's Section 2255 Motion on March 25, 2014. In its response, the
Government seeks to have the Motion to Vacate (Doc. #1) dismissed in its entirety. Petitioner filed
an Addendum to the Government's Response to his Petition (Doc. #8) on July 16, 2014.1
Petitioner Steele's Motion to Vacate (Doc. #1) seeks relief on the ground that he received
ineffective assistance of counsel during the guilty plea stage of proceedings. (Doc. #1 at 6).
I.

Background
On February 29, 2012, a federal grand jury returned a ten count indictment against Brian

Steele. (See Doc. #1 in Case No.: 2:12-cr-0068-RDP-MHH). On April 11, 2012, Steele was arrested

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On March 31, 2014, the court entered an Order (Doc. #7) allowing Petitioner 21 days within
which to respond to the Government's response of March 25, 2014 (Doc. #6). Petitioner failed to do so.
Instead, almost four months later, Petitioner filed an Addendum (Doc. #8). Although that Addendum was
sorely out of time, it was reviewed by the court in connection with this habeas petition. However, the
arguments included therein fail to meet the threshold of professionally incompetent assistance and may
more appropriately fall within an 18 U.S.C. § 3582 motion.

and had an initial appearance. (Docket entry of 4/11/2012 in Case No. 2:12-cr-0068-RDP-MHH).
On May 7, 2012, the United States filed an information to establish Steele's prior felony drug
conviction which subjected him to a mandatory minimum sentence of twenty years in prison if he
was convicted of the penalty section set forth in 21 U.S.C. § 841(b)(1)(A) in Count One. (Doc. #32
in 2:12cr68).
Steele plead guilty to Counts One, Six, Eight, Nine, and Ten of the Indictment. (Doc. #50
in 2:12cr68).

On November 27, 2012, Steele was sentenced and remanded to the custody of the

Bureau of Prisons for twenty years on Counts One, Six, Seven, Eight, and Ten -- separately and
concurrently -- plus a 60-month consecutive sentence on Count Nine. (Doc. #78 in 2:12cr68).
Steele did not appeal this sentence.
II.

Discussion
A federal prisoner may file a motion to vacate his or her sentence "upon the ground that the

sentence was imposed in violation of the Constitution or laws of the United States, or that the court
was without personal jurisdiction to impose such a sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255, ¶
1. It is well settled that "to obtain collateral relief, a prisoner must clear a significantly higher hurdle
than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). Here,
Petitioner seeks relief on the ground that he received ineffective assistance of counsel.
Ineffective assistance of counsel claims are governed by the standard set forth in Strickland
v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court established a two-prong test
for adjudicating ineffective assistance of counsel claims. Both prongs of the test must be met for
Petitioner to succeed. Id. at 687. First, Steele must show that counsel's performance was deficient,
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i.e., outside the range of professionally competent assistance. Id. The proper measure of an
attorney's performance is "reasonableness under prevailing professional norms." Id. at 688. Unless
a petitioner can rebut the "strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance," he cannot show that counsel's performance was constitutionally
deficient. Id. at 689. "The test has nothing to do with what the best lawyers would have done. Nor
is the test even what most good lawyers would have done. [The court asks] only whether some
reasonable lawyer . . . could have acted, in the circumstances, as defense counsel acted . . .." White
v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992); see also Waters v. Thomas, 46 F.3d 1506, 1514
(11th Cir. 1995) (stating that "perfection is not the standard of effective assistance").2
Second, Steele must establish prejudice, such that there is a reasonable probability that,
absent counsel's errors, the outcome of the proceeding would have been different. Strickland, 466
U.S. at 687; Chandler v. United States, 218 F.3d 1305, 1312-13 (11th Cir. 2000). "A reasonable
probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S.
at 694. Because Petitioner must meet both parts of the test, the court need not address the
performance prong if Petitioner cannot meet the prejudice prong, and vice versa. Holladay v. Haley,
209 F.3d 1243, 1248 (11th Cir. 2000).
The Supreme Court has held that Strickland's two-part test also applies to "challenges to
guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58 (1985).
In Hill, the Court held that to establish prejudice, "the defendant must show that there is a reasonable

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In fact, the Supreme Court has warned against second-guessing professional judgments made
by counsel: "Judicial scrutiny of counsel's performance must be highly deferential," and courts should
make every effort to "eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."
Strickland, 466 U.S. at 689.

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probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted
on going to trial." Hill, 474 U.S. at 59. The context of the case's scope and the circumstances of
counsel's representation also matter. Thus, "counsel owes a lesser duty to a client who pleads guilty
than to one who decides to go to trial, and in the former case counsel need only provide his client
with an understanding of the law in relation to the facts, so that the accused may make an informed
and conscious choice between accepting the prosecution's offer and going to trial." Wofford v.
Wainwright, 748 F.2d 1505, 1508 (11th Cir.1984). "To impart such an understanding to the accused,
counsel must, after making an independent examination of the facts, circumstances, pleadings and
laws involved, offer his informed opinion as to the best course to be followed in protecting the
interests of his client." Id. Of course, the court also plays an important role in ensuring that criminal
defendants make knowing, voluntary, and informed decisions about whether to plead guilty or
proceed to trial. See, e.g., Fed. R. Crim. P. 11(b).
A.

Burden of Proof

Petitioner argues that he never would have agreed to the guilty plea had counsel "properly"
informed him of the law in relation to the facts of the case "and would have instead either went to
trial or negotiated a favorable agreement." (Doc. #2 at 8). He argues that he didn't understand what
the Government would have to prove as to Counts One and Nine because his attorney never
explained the intricacies of those counts to him.
1.

Count One

As to Count One, which charged Petitioner with Conspiracy to Possess with the Intent to
Distribute 280 grams of cocaine base and 5 kilograms of cocaine hydrochloride in violation of 21
U.S.C. §§ 846 and 841(a), Petitioner argues that his counsel failed to inform him as to the elements
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of conspiracy. (Doc. #2 at 10) (citing United States v. Payne, 750 F.2d 844 (11th Cir. 1985)). More
specifically, Steele argues that his attorney failed to explain the following: the essence of a
conspiracy is an agreement to commit a common objective; two parties can engage in a drug
transaction without forming a conspiracy; a person cannot conspire with a government informer who
secretly intends to frustrate the purpose of the conspiracy; and there was no benefit to the
Government's plea agreement. (See Doc. #2 at 10-11).
During the court's plea colloquy with Petitioner, however, the following exchanges occurred
which demonstrate Petitioner's argument to be without merit:
THE COURT:

Mr. Cross, have you had adequate time to consider any possible
defense with respect to your client, to consider and investigate the
charges against him, and to discuss all those matters with him?

MR. CROSS:

Yes, Your Honor, I have.

THE COURT:

And, Mr. Steele, have you had adequate time to consult with your
attorney concerning the charges pending against you and any defenses
you may have to those charges?

DEFENDANT:

Yes, sir.

THE COURT:

Are you fully satisfied with the representation and advice that you
received from your attorney, Mr. Cross, in this case?

DEFENDANT:

Yes, sir.

(Doc. #87 at 4-5 in Case No. 2:12cr68-RDP-MHH).
THE COURT:

All right. What I want to give you now is an explanation of the
charges. I'm going to start with Count 1. That is the conspiracy
count. It alleges that you and others conspired to possess with the
intent to distribute some 280 grams or more of a mixture and
substance containing a detectable amount of cocaine base, otherwise
known as crack cocaine, and five kilograms or more of a mixture and
substance containing a detectable amount of cocaine hydrochloride,

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that is, cocaine powder. That charge in Count 1 is a conspiracy and
is a felony offense.
In order to convict you of that offense, the government would have to
prove the following facts: That two or more people in some way or
manner agreed to try to accomplish a shared and unlawful plan to
possess a mixture and substance containing a detectable amount of
crack cocaine and a mixture and substance containing a detectable
amount of powder cocaine.
Second, that you knew the unlawful purpose of the plan and willfully
joined in it. And third, that the object of the unlawful plan was to
possess with the intent to distribute and/or distribute 280 grams or
more of a mixture and substance containing a detectable amount of
crack cocaine and five kilograms or more of a mixture and substance
containing a detectable amount of powder cocaine.
You can be convicted as a conspirator even without knowing all the
details of the unlawful plan or the names and identities of all the other
alleged conspirators. And if you only played a minor part in the plan
but had a general understanding of the unlawful purpose of the plan,
that is sufficient to convict you if you willfully joined in the plan on
at least one occasion.
Do you understand the charges against you in Count 1?
DEFENDANT:

Yes, sir.

THE COURT:

Have you talked with this attorney?

DEFENDANT:

Yes, sir.

THE COURT:

And is what he told you consistent with what I've told you?

DEFENDANT:

Yes, sir.

THE COURT:

Do I need to answer any questions or give you any other information
or define any of these terms for you?

DEFENDANT:

No, sir.

THE COURT:

So you think you have a full understanding of the charge?

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DEFENDANT:

Yes, sir.

(Doc. #87 at 8-9 in Case No. 2:12cr68-RDP-MHH).
THE COURT:

And is what I have talked to you about consistent with what you and
your lawyer talked about before walking into the courtroom today in
terms of what the government would have to prove?

DEFENDANT:

Yes, sir.

(Doc. #87 at 12 in Case No. 2:12cr68-RDP-MHH).
Petitioner asked for a "time out" to speak with his attorney at this point during the colloquy.
He represents to the court that during that "time out" he "expressed his reluctance to plea guilty to
the conspiracy offense essentially because after hearing the Court explain the elements of the offense
he was not sure whether he was actually guilty of conspiring with anyone." (Doc. #2 at 12 and
attached affidavit). But the court again went to lengths to ensure the plea was knowing and
voluntary after Petitioner's discussion with counsel.
THE COURT:

All right. And again, one of the reasons I sleep well at night is I
know I've never forced someone into a plea or ramrodded anyone into
a plea. I always want to make sure it's knowing and voluntary. Do
you need to have any more time at all?

DEFENDANT:

No, sir.

(Doc. #87 at 31 in Case No. 2:12cr68-RDP-MHH).
Because the record is clear that defense counsel and the court each provided Petitioner with
an understanding of the law in relation to the facts as to Count One, Petitioner's ineffective assistance
of counsel claim fails.

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2.

Count Nine

As to Count Nine, which charged Petitioner with possession of a firearm in furtherance of
a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(a)(1), Petitioner argues that his counsel
never told him that the mere presence of a firearm is insufficient to establish that the firearm was
possessed in furtherance of a drug trafficking crime. (Doc. #1 at 13). He argues that he was unaware
that to establish the offense, the Government would have to prove that he used the firearm to help,
further, promote, or advance the drug trafficking crime. (Doc. #1 at 13). "In the case at bar, counsel
never explained this important legal principle to the petitioner, and actually erroneously informed
him of the exact opposite, that the mere presence of the firearm [was] sufficient to satisfy the
Government's burden." (Id.). The problem for Petitioner is that the record evidence cuts directly
against his attempt at revisionist history.
THE COURT:

All right. Count Nine of the Indictment charges that you violated 18
United States Code Section 924(c)(1)(a)(1), which is possession of a
firearm in furtherance of a drug trafficking crime. That statute makes
it a separate federal crime or offense for anyone to possess a firearm
in furtherance of a drug trafficking crime.
In order to be guilty of that charge, the government would have to
prove beyond a reasonable doubt the following facts: First, that you
committed the drug trafficking crime charged in Count 8. That was
the possession with the intent to distribute.
Second, that you knowingly possessed a firearm. And third, that you
possessed the firearm in furtherance of that drug trafficking crime.
In other words, the firearm helped, promoted, or advanced the crime
in some way.
Do you understand the charge made against you with respect to Count
Nine?

DEFENDANT:

Yes, sir.

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THE COURT:

Any questions I need to answer for you about that or definitions I
need to give you with respect to any of those terms?

DEFENDANT:

No, sir.

THE COURT:

And have you talked about that charge with your lawyer?

DEFENDANT:

Yes, sir.

THE COURT:

And is your discussion with your lawyer consistent with [what] you
and I just talked about a moment ago?

DEFENDANT:

Yes, sir.

(Doc. #87 at 12-13 in Case No. 2:12cr68-RDP-MHH). Because the plea colloquy is clear that
Petitioner was fully informed and fully understood Count Nine to which he pled guilty, and because
he acknowledged at the plea hearing that his lawyer's discussions with him were consistent with the
court's instructions, the claim for ineffective assistance of counsel on this Count cannot stand.
B.

Penalties

Petitioner argues that his attorney was ineffective for failing to properly advise him of the
penalties he faced as a consequence of the plea. (See Doc. #2 at 11) ("Meaning that he had nothing
to lose and everything to gain by going to trial . . ."). However, once again, the record evidence
establishes otherwise.
THE COURT:

[A]nd, Mr. Steele, [the government attorney] was correct to stand to
make sure I properly advised you of this. Under 841(b)(1)(A), if you
had a prior qualifying drug conviction -- and the government
contends that is a prior qualifying drug conviction -- then the custody
becomes not less than 20 years up to life. That's an enhancement that
is put in place because of your prior conviction under 21 United
States Code Section 851. Do you understand that?

DEFENDANT:

Yes, sir.

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THE COURT:

Talked about all that with your lawyer in terms of the penalties for
Count 1?

DEFENDANT:

Yes, sir.

THE COURT:

Counts 6 through 8 generally carry with them a fine of not more than
$1 million per count, custody of not more than 20 years per count, a
supervised release term of not more than three years per count and a
$100 assessment fee.
Again, there is an enhancement for one or more qualifying drug
convictions, and that makes the custody go up to not more than 30
years and the fine go up to not more than $2 million, and the
supervised release term is raised to not less than six years. Counsel
with me so far?

MR. CROSS:

Yes, sir.

THE COURT:

Are we in agreement with that?

MR. DIMLER:

Yes, sir.

THE COURT:

Okay. Do you understand all those things?

DEFENDANT:

Yes, sir.

THE COURT:

All right. Any questions about those?

DEFENDANT:

No, sir.

THE COURT:

Count 9 is the possession of the firearm in furtherance of the drug
trafficking crime. That's a unique penalty that comes into play that
I'm sure you and your lawyer have talked about under Count 9. That
carries with it a fine of not more than $250,000, custody of not less
than five years nor more than life. And the key there that you need to
understand is that sentence cannot start until you complete all the
other sentences that you're serving in this case. Do you understand
that?

DEFENDANT:

Yes, sir.

THE COURT:

That's a consecutive sentence. It stacks on top of these other
sentences, and that carries with it a supervised release term of not
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more than five years and a $100 assessment fee. So in other words,
whatever years you get, you'll have to serve all those years on the
other sentences and serve the sentence for Count 9 at the end of that.
Do you understand what I'm saying there?
DEFENDANT:

Yes, sir.

THE COURT:

Talked about that with your lawyer?

DEFENDANT:

Yes, sir.

(Doc. #87 at 23-25 in Case No. 2:12cr68-RDP-MHH).
Before concluding the discussion of penalties, the court asked Steele if he understood the
maximum and minimum penalties that had been outlined for him. To that, Steele responded, "Yes,
sir." (Doc. #87 at 26 in Case No. 2:12cr68-RDP-MHH). The court went even further:
THE COURT:

Is everything that I have talked to you about in terms of maximum
and minimums and the scope of penalties consistent with what you
and Mr. Cross talked about before you came in the courtroom today?

DEFENDANT:

Yes, sir.

THE COURT:

Do you wonder why I keep asking these questions about whether
these are consistent with what you and your lawyer talked about?
Believe it or not, some people, after they have been sentenced, decide
that their lawyer did not advise them properly and move to vacate
their sentence for that reason.
So one of the things I try to do is try to make sure we're all on the
same page in terms of the elements for the crime and the penalties for
the crime. Do you understand that?

DEFENDANT:

Yes, sir.

(Doc. #87 at 26 in Case No. 2:12cr68-RDP-MHH). Because the record evidence shows that
Petitioner fully understood the penalties he would face upon entering a guilty plea, the claim for
ineffective assistance of counsel fails.
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C.

Available Defenses

Petitioner's final argument for vacating his sentence is that "Steele had viable defenses to
both Count One and Count Nine that counsel failed to inform him of, and which would have likely
born fruit." (Doc. #2 at 14).
As to Count One, Steele argues that he had: (1) the buyer-seller defense; and (2) the
Government informer defense. (See Doc. #2 at 14). He argues that "there was absolutely no
evidence that the movant had anything other than a buyer-seller relationship with the Government
informer" and that "[t]he only drug deals between Steele and the informer that there was actual proof
of was the controlled buys that took place after the informer started working for the Government."
(Doc. #2 at 14). As to Count Nine, Petitioner argues that he did not possess the firearm in
"furtherance"of the drug trafficking crime; that there was no evidence other than the proximity of
the weapon to some drug evidence to meet this threshold. (See Doc. #2 at 17). Petitioner argues that
"[i]t is quite likely that the jury would also have acquitted the Petitioner of this offense had this
defense been properly utilized." (Id.)
These arguments fail because they neglect to consider the full array of evidence that would
have been before the jury had the case gone to trial, leaving nothing but a blanket opinion that a trial
might have had a more favorable outcome for Petitioner. In Petitioner's case, there was evidence of
a buying/selling relationship involving the repeated transfer of drugs, thus allowing the inference of
a conspiratorial relationship. See United States v. Dekle, 165 F.3d 826 (11th Cir. 1999). In fact,
there is evidence that the drug trafficking relationship began in June 2006 and involved at least 15
deliveries of cocaine. (See Doc. #6 at 20). The facts imputed to by Steele clearly establish that the
men conspired with one another back into 2006, long before the informant was acting on behalf of
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the Government. (Id. at 21). There was also sufficient evidence to support a conviction under §
924(c).
For these reasons, Petitioner's motion to vacate fails on the ground that his counsel did not
explore viable defenses.
III.

Conclusion
Petitioner's allegations are affirmatively contradicted by the record in this case. Therefore,

the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. #1) is due
to be denied. A separate order will be entered dismissing this case in its entirety.
DONE and ORDERED this

9th

day of January, 2015.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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