Brown v. United States of America

Filing 8

REPORT AND RECOMMENDATIONS denying re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by William B. Brown, denying 4 MOTION for Summary Judgment filed by William B. Brown. Petitioner's in forma pauperis status on appeal should like wise be denied. Objections to R&R due by 8/6/2013. Signed by Magistrate Judge G. R. Smith on 7/22/2013. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATE SBORO DIVISION
WILLIAM BENJAMIN BROWN,
Movant,
Case No.

V.

CV613-038
CR611-OO1

UNITED STATES OF AMERICA,
Respondent.

REPORT AND RECOMMENDATION
William Benjamin Brown, who pled guilty to failing to register as a
sex offender and possessing ammunition as a convicted felon, moves for 28
U.S.C. § 2255 relief. (Doc. 1. 1) The government contends that Brown's
motion is barred, since he waived his rights to appeal and collaterally
attack his conviction and sentence. (Doe. 3.)
Brown's plea agreement contains the following provision:
to the maximum extent permitted by federal law, the
defendant voluntarily and expressly waives the right to appeal
the conviction and sentence and the right to collaterally attack
the conviction and sentence in any post-conviction proceeding,
including a § 2255 proceeding, on any ground, except that: the
1

Unless otherwise noted, citations are to the docket in movant's civil case,
CV613-038. "Cr. doc." refers to documents filed under movant's criminal case,
CR611-OO1.

defendant may file a direct appeal of his sentence if it exceeds
the statutory maximum; and the defendant may file a direct
appeal of his sentence if, by variance or upward departure, the
sentence is higher than the advisory sentencing guideline
range as found by the sentencing court. The defendant
understands that this Plea Agreement does not limit the
Government's right to appeal, but if the Government appeals
the sentence imposed, the defendant may also file a direct
appeal of the sentence.
(Cr. doe. 60 at 6-7.) The Court must determine the validity of that
comprehensive waiver and its preclusive effect.
"A plea agreement is 'a contract between the Government and a
criminal defendant."

Thompson v. United States, 353 F. App'x 234, 235

(11th Cir. 2009) (quoting United States v. Howle, 166 F.3d 1166, 1168
(11th Cir. 1999)). Hence,
it should be given the interpretation that the parties intended.
United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir. 2005)).
"[T]he defendant's knowledge and understanding of the
sentence appeal waiver is one of the components that
constitutes the 'core concern' of the defendant's right to be
aware of the direct consequences of his guilty plea." United
States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993)
(internal quotation marks omitted). To demonstrate that a
sentence-appeal waiver is sufficiently knowing and voluntary
to be enforceable, the government must show that either (1)
the district court specifically questioned the defendant
concerning the sentence appeal waiver during the colloquy; or
(2) it is manifestly clear from the record that the defendant
otherwise understood the full significance of the waiver. Id.
2

Thompson, 353 F. App'x at 235; United States v. Ruff, 2011 WL 205382 at
*1 (11th Cir. Jan. 5, 2011). As to § 2255 collateral bars,
"[alt a minimum, the would-be petitioner must know at the
time of the guilty plea that the right to federal habeas review
exists, and he must realize he is giving up that right as part of
his plea bargain." Allen v. Thomas, 161 F.3d 667, 670 (11th
Cir. 1998). When a valid sentence-appeal waiver containing
express language waiving the right to attack a sentence
collaterally is entered into knowingly and voluntarily, it will be
enforceable and serve to prevent a movant from collaterally
attacking a sentence on the basis of ineffective assistance of
counsel. [United States v.] Williams, 396 F.3d [1340, 1342
(11th Cir. 2005)].

Thompson, 353 F. App'x at 235.
Brown never contests the government's assertion that the waiver
was knowingly and voluntarily entered. He could not win such a claim in
any event. The waiver itself explicitly referenced § 2255 proceedings and
noted that Brown would be forever barred from challenging his conviction
and sentence under that statute. (Cr. doc. 60 at 6-7.) He signed the plea
agreement (id. at 12) and testified at the hearing that he had read it,
reviewed it with counsel, and understood it (cr. doc. 71 at 31-32).
Moreover, the judge discussed the appeal and collateral waiver at length
during movant's Rule 11 hearing:
3

Q. Now, the right to appeal is a good right, an important right. You
have given up your right to appeal if the Court sentences you within
the Federal Sentencing Guidelines. You have a right to appeal under
two circumstances, as I understand it, if the government files an
appeal, then you may file an appeal. Or, if the Court, that means the
judge, sentences you outside of the guidelines; that is in excess of
what the guidelines call for, you may appeal.
And then you are giving up your right to collaterally attack your
plea; that is, to say that your lawyer was no good, or he didn't
represent you correctly, or that he did not -- his advice was flawed,
or that the grand jury or the government agents, or the prosecutor
did something that offended your rights. You are giving up your
right to complain about those types of collateral attacks on your
judgment of guilty or your sentence. Do you understand that?
A.

Yes, sir.

Q. So you limit yourself, if I sentence you within the Federal
Sentencing Guidelines as calculated by the Court, you do not have a
right to appeal or to attack your lawyer, or the agents, or
prosecutors, or grand jury, or whomever. You understand that?
A.

Yes, sir, I do.

(Id. at 32-33.) Brown's "solemn declarations" before the district judge
that he understood the rights he waived "carr[ies] a strong presumption
of verity" and rightly constitutes a "formidable barrier" to overcome in
these collateral proceedings.

Cross v. United States, 2009 WL 211418 at

* 8 (S.D. Ga. Jan. 27, 2009) (quoting Blackledge v. Allison, 431 U.S. 63, 74
(1977)). Finally, he was sentenced to a mandatory sentence under the
ri

Armed Career Criminal Act of 15 years. (PSI ¶IT 65-66; Cr. doc. 69 at
32-56 (sentencing tr.).) He cannot claim the waiver's exception.' (Cr.
doc. 45 at 11.) Based upon the totality of the record, the Court is satisfied
that he "understood the full significance of the waiver."

Bushert, 997

F.2d at 1351. The Eleventh Circuit agreed in denying his appeal. (Cr.
doc. 73 at 5 ("Brown's plea agreement is valid, and he has waived the right
to appeal his conviction and sentence -- therefore, we need not consider
his Eighth Amendment claim.").) All of Brown's claims, excepting one,
fall within the waiver. 3

2

Brown faced prosecution as an Armed Career Criminal under 18 U.S.C. §
924(e), which mandated a 15-year minimum sentence. Since the statutory minimum
sentence (180 months) exceeded the recommended Guidelines range (135-168
months), "the statutorily required minimum sentence shall be the guideline
sentence." U.S.S.G. § 5G1.1(b). Brown was sentenced accordingly.
Brown claims that: (1) he was not a convicted felon, despite a string of felonies
including multiple rapes and breaking and entering, since the laws of Michigan
restored his status after serving a period of incarceration for a prior felony; (2) the
government breeched the plea agreement by failing to present certain evidence at
sentencing; (3) he never had three prior convictions under the Armed Career Criminal
Act; (4) the government failed to respond properly to a discovery motion; and (5) he
received ineffective assistance of counsel in several ways, including a failure of advice
as to the plea. (Doe. 1.)
A waiver of the right to pursue an appeal or collateral attack, plus the waiver of
any trial or sentencing errors through a plea of guilty, broadly waives "the right to
appeal [or collaterally attack even] blatant error." United States v. Howle, 166 F.3d
1166, 1169 (11th Cir. 1999), applied in Marshall v. United States, 2013 WL 772855 at *
2 (S.D. Ga. Feb. 28, 2013); Cummings v. United States, 2013 WL 2422889 at * 5 (S.D.
5

Brown claims that his plea was invalid because he did not
understand his plea and did not understand his sentencing exposure.
(Doc. 1 at 13, 33-35.) Absent counsel's errors, he would have proceeded
to trial.

(Id.) It is well established that such challenges are permissible

despite a valid collateral appeal waiver.

See Patel, 252 F. App'x at 974.

In such cases, the Court is guided by Hill v. Lockhart, 474 U.S. 52
(1985). Where a movant enters a plea of guilty and then collaterally
challenges it as involuntary due to constitutionally deficient
representation, he must first demonstrate that his attorney's
performance was deficient, which requires a showing that counsel's advice
regarding the plea was outside the "range of competence demanded of
attorneys in criminal cases."

Hill, 474 U.S. at 56 (quoting McMann v.

Ga. June 3, 2013) (enforcing exact same double-waiver agreement); Sinkfield v. United
States, 2013 WL 2659925 at * 4 (S.D. Ga. June 10, 2013) (same). Only failures in
plea advice and jurisdictional defects can be reviewed in the face of a collateral appeal
waiver. See Pate] v. United States, 252 F. App'x 970, 975 (11th Cir. 2007) (collateral
attack waiver did not bar § 2255 challenge to "validity of. . . guilty plea").
While Brown couches several of his claims as jurisdictional, they are not. A
jurisdictional claim would include, for instance, an indictment that entirely fails to
charge a crime. United States v. Meacham, 626 F.2d 503, 510 (5th Cir. 1980).
Merely misconstruing his criminal history is a non-jurisdictional defect that was
waived by Brown's guilty plea. The fifth ground, however, briefly steps into a failure
of plea advice, which the Court must address head-on. It also, however, includes
waived arguments, including counsel's failure to investigate the Presentence
Investigation Report, among other things. (Doc. 1 at 34.)
I.

Richardson, 397 U.S. 759, 771 (1970)); see Tollett,

411 U.S. at

267. Then he must demonstrate that the defective performance
prejudiced the plea process to such a degree that the plea cannot be
trusted.

Hill, 474 U.S. at 59. To meet the prejudice prong in this

context, Brown must show that there is a reasonable probability that but
for counsel's errors he would not have pled guilty and would have insisted
on going to trial.

Hill, 474 U.S. at 59.

Brown contends that his attorney, W. Keith McGowan, suggested
that the government would be unable to prove his criminal history, hence
he would not be sentenced to a mandatory 15-year minimum sentence.
(Doc. 1 at 33.) He also states that counsel never advised him which rights
he would be giving up by accepting the plea.

(Id. at 34.) The record is

against him. At the plea hearing, the Court read Brown the charges,
explained their meaning and elements, and explained his sentencing
exposure should he be deemed an armed career criminal. (Cr. doe. 71 at
22-24.) In addition, he admitted that he had gone over all of that with his
attorney and understood it.

(Id.) He swore that he was not pressured

by anyone to accept the plea.

(Id. at 28-29.) Brown's "solemn

7

declarations" before the district judge "carry a strong presumption of
verity" and rightly constitute a "formidable barrier" for him to overcome
in these collateral proceedings.

Cross v. United States, 2009 WL 211418

at * 8 (S.D. Ga. Jan. 27, 2009) (quoting Blackledge v. Allison, 431 U.S. 63 7
74 (1977)).
Indeed, "if the Rule 11 plea-taking procedure is careful and detailed,
the defendant will not later be heard to contend that he swore falsely."

United States v. Stitzer, 785 F.2d 1506, 1514 n.4 (11th Cir. 1986). The
only way Brown could conceivably undermine his sworn declarations,
then, would be to show both that he swore falsely and that he did so due to
some failing by his attorney. He has not come close to meeting that
burden. Nor can Brown show any prejudice from counsel's alleged
failure to explain the nature of the charges to him. The record flatly
contradicts his contention that he did not understand what was required
to prove the charges against him, the nature of the rights he was giving
up, or the sentencing exposure he faced.
For all of the reasons explained above, Brown's § 2255 motion
should be DENIED. He also filed a frivolous motion for summary

'•l

judgment (doe. 4), which should likewise be DENIED. Moreover,
applying the Certificate f Appealability ("COA") standards, which are set
forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9,
2009) (unpublished), the Court discerns no COA-worthy issues at this
stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1);
see Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving
sua sponte denial of COA before movant filed a notice of appeal). And, as
there are no non-frivolous issues to raise on appeal, an appeal would not
be taken in good faith. Thus, in forma pauperis status on appeal should
likewise be DENIED. 28 U.S.C. § 1915(a)(3).

SO REPORTED AND RECOMMENDED this Z3 day of
July, 2013.

UNITED TATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA