United States of America v. Brown
Filing
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Enter MEMORANDUM OPINION AND ORDER: For the reasons stated herein, this Court denies Browns motion attacking his sentence and declines to issue a certificate of appealability. Signed by the Honorable Virginia M. Kendall on 11/7/2013.Mailed notice(tsa, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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UNITED STATES OF AMERICA,
v.
WILLIE BROWN
12 C 8076
Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Petitioner Willie Brown, proceeding pro se, moved under 28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence. Brown claims that his trial counsel was ineffective because she
failed to investigate facts concerning a search warrant, failed to prevent the government from
using conduct detailed in a plea agreement as grounds for a sentence enhancement, and failed to
challenge this Court’s conclusion that Brown was an armed career criminal. Brown also claims
that his appellate counsel was ineffective because he did not appeal the district court’s denial of
Brown’s motion to suppress evidence obtained pursuant to a search warrant. This Court denies
Brown’s petition for the reasons stated herein.
BACKGROUND
On July 14, 2010, a federal grand jury returned a three-count indictment against Brown
charging him with: (1) being a felon in possession of a firearm in violation of Title 18, United
States Code, Sections 922(g)(1) and 924(e)(1) (Count I); (2) possession of heroin with intent to
distribute in violation of Title 21, United States Code, Section 841(a) (Count II); and (3)
possession of a firearm in furtherance of a drug trafficking crime in violation of Title 18, United
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States Code, Section 924(c)(1)(A) (Count III). (Dkt. No. 1.) 1 According to Chicago Police
Officer Edward Sullins, police officers arrested an individual for selling narcotics on February
25, 2010. (12 C 8076, Dkt. No. 4 at 29, “Brown Memorandum.”) This individual became an
informant. (Id.) This informant identified Brown as his supplier and provided police officers with
Brown’s address. (Id.) Police officers used this information to obtain a warrant to search
Brown’s residence. (Id.) Police officers found heroin and firearms in Brown’s residence and
arrested Brown. (Id. at 30.)
Brown’s trial counsel moved to suppress the evidence obtained from the search of
Brown’s residence. (Dkt. No. 12.) Defense Counsel argued that the facts used to establish
probable cause were unreliable because police officers did not establish the reliability of their
informant. (Id.at 3-4.) Defense Counsel also argued that police officers did not act in good faith
in relying on the search warrant because a reasonable officer would have known that the affidavit
used to obtain the search warrant failed to establish probable cause. (Id. at 4-5.) The government
opposed Brown’s motion to suppress.
In a written opinion after full briefing, this Court denied Brown’s motion to suppress
because the informant had recently been to Brown’s residence, police officers corroborated the
informant’s identification of Brown and Brown’s residence, and the judge who issued the search
warrant met the informant and had the opportunity to assess the informant’s credibility. (Dkt.
No. 25 at 4-5.) This Court also determined that the search warrant contained a minimum indicia
of illegal drug activity at Brown’s residence such that a reasonable officer could have believed
that probable cause existed. (Id. at 6-7.)
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Unless otherwise indicated, references to docket entries refer to the underlying criminal case,
which is 10 CR 595.
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On March 11, 2011, represented by counsel and after reviewing a written plea agreement,
Brown entered a plea of guilty as to Count I. (Dkt. No. 59.) The plea agreement set forth the
factual bases for Brown’s offense. (Id.¶ 6.) The plea agreement also states that Brown stipulates
to the possession of heroin in his apartment with the intent to distribute it “for the purposes of
computing his sentence under Guideline §1B1.2.” (Id. ¶ 7.) The plea agreement further states that
the mandatory minimum sentence for Brown’s offense is fifteen years if “the Court determines
that defendant is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) and
is an Armed Career Criminal within the meaning of Guideline § 4B1.4.” (Id. ¶ 8.a.) Although he
entered a plea of guilty, Brown reserved the right to appeal this Court’s denial of his motion to
suppress. (Id.¶ 20.)
Before accepting Brown’s plea of guilty, this Court held a change of plea hearing during
which this Court determined that Brown’s plea was voluntary and did not result from force,
threats, or promises not contained in the plea agreement. (Dkt. No. 94.) After placing Brown
under oath, this Court determined that Brown was competent to enter a plea of guilty based on
Brown’s answers to a series of questions asked by this Court. (See id. at 6:24-7:1.) This Court
accepted Brown’s plea of guilty. (Id. at 24:1-7.)
On September 12, 2011, this Court sentenced Brown to 180 months in prison. (Dkt. No.
77 at 2.) During the sentencing hearing, the government identified at least three previous
convictions for serious drug offenses committed on different occasions by Brown. (See Dkt. No.
95 at 7:14-19.) Defense Counsel conceded at sentencing that two of Brown’s prior convictions
qualified as serious drug offenses. (Dkt. No. 69 at 1). But Defense Counsel argued that one of
Brown’s prior convictions, a 1991 delivery conviction, did not qualify as a serious drug offense
because the narrative for that offense did not indicate why the State of Illinois deemed the
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offense a Class X felony. (See id. at 2-3 and Dkt. No. 95 at 8:3-11:12.) According to Defense
Counsel, the offense itself—delivery of 0.15 grams of cocaine— was not a serious drug offense
because it did not qualify as a Class X felony punishable by at least ten years in prison. (Dkt. No.
69 at 3.) Defense Counsel argued that something other than the offense itself, such as Brown’s
prior criminal history, rendered the offense a Class X felony. (Id.) Defense Counsel also argued
that none of Brown’s remaining offenses qualified as serious drug offenses. (Id.at 3-4.) Based on
the evidence presented, however, this Court determined that Brown qualified as an armed career
criminal because he committed more than three serious drug offenses. (Dkt. No. 95 at 25:4-18.)
In fact, this Court found that Brown spent his entire adult life committing crimes involving drugs
and weapons. As a result, this Court sentenced Brown as an armed career criminal. (See id.)
Brown filed a notice of appeal on September 18, 2011. (Dkt. No. 74.) The United States
Court of Appeals for the Seventh Circuit appointed counsel on appeal for Brown. (Dkt. No. 89.)
Appellate Counsel concluded that Brown’s appeal was frivolous and asked to withdraw as
counsel pursuant to Anders v. California, 386 U.S. 738 (1967). (Dkt. No. 101 at 2.) The Seventh
Circuit granted Appellate Counsel’s request and explained that: (1) Brown did not want his
guilty plea set aside unless this Court’s ruling on his motion to suppress was also set aside; (2) a
challenge to this Court’s ruling on Brown’s motion to suppress would have been frivolous; and
(3) a challenge to this Court’s finding that Brown was an armed career criminal would have been
frivolous. (Id. at 2-3)
STANDARD OF REVIEW
A federal prisoner may move the court that imposed a sentence to vacate, set aside, or
correct that sentence on the grounds that the court imposed the sentence in violation of the
Constitution or laws of the United States, the court lacked jurisdiction to impose the sentence,
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the sentence exceeded that permitted by law, or the sentence is otherwise subject to collateral
attack. 28 U.S.C. § 2255. “Relief under § 2255 is an extraordinary remedy because it asks the
district court to essentially reopen the criminal process to a person who already has had an
opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). A
district court may dismiss a petition under § 2255 at an early stage—and without an evidentiary
hearing—if the record before the court shows that the petitioner is not entitled to relief. Id.
The Sixth Amendment provides criminal defendants with the right to effective counsel.
Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011). To prevail on an ineffective assistance
of counsel claim, a petitioner must show that his counsel’s performance was deficient and that
the deficient performance prejudiced his defense. United States v. Lathrop, 634 F.3d 931, 937
(7th Cir. 2011). Courts presume that counsel “rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Id. (quoting
Strickland v. Washington, 466 U.S. 668, 690 (1984)). To rebut this presumption, a petitioner
must show that his counsel’s performance fell below an objective standard of reasonableness and
that, but for his counsel’s performance, the result of the proceeding would have been different.
Lathrop, 634 F.3d at 937.
DISCUSSION
Brown has not shown that his counsel’s performance at trial or on appeal was deficient.
Two of Brown’s claims concern his motion to suppress evidence obtained pursuant to a search
warrant. Brown claims that his counsel failed to challenge the existence of probable cause and
the allegations in the search warrant. (See Brown Memorandum at 9.) But Brown’s trial counsel
did challenge the search warrant. Brown lost. And it is true that Brown’s appellate counsel did
not challenge the search warrant on appeal—he refused to do so because he thought it frivolous.
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The Seventh Circuit agreed. (Dkt. 101 at 2.) Therefore, Brown’s claim that his counsel was
ineffective because it failed to challenge the search warrant at trial and on appeal fails.
Similarly, Brown’s claim that his counsel failed to investigate the allegations in the
search warrant also fails. As a threshold matter, “[w]hen a petitioner alleges that counsel’s failure
to investigate resulted in ineffective assistance, the petitioner has the burden of providing the
court with specific information as to what the investigation would have produced.” Lathrop, 634
F.3d at 939. Brown has not identified any information that would have come from an
investigation of the informant. See Hardamon v. United States, 319 F.3d 943, 951 (7th Cir. 2003)
(“a petitioner alleging that counsel’s ineffectiveness was centered on a supposed failure to
investigate has the burden of providing the court sufficiently precise information, that is, a
comprehensive showing as to what the investigation would have produced.”) Further, the judge
who issued the search warrant had the opportunity to interview the informant. See United States
v. Johnson, 289 F.3d 1034, 1040 (7th Cir. 2002) (“when a [confidential informant] accompanies
the officer and is available to give testimony before the judge issuing the warrant, his presence
adds to the reliability of the information used to obtain the warrant”). This further lessens the
likelihood that Brown’s counsel could have elicited information that would have undermined the
legitimacy of the search warrant. In short, the informant provided reliable information that
established probable cause to search Brown’s residence and the allegations contained in the
search warrant were sufficient for a reasonable police officer to consider the search warrant as
valid. (See Dkt. No. 25.) Therefore, Brown’s second claim fails.
Brown’s third claim concerns whether Brown qualified as an armed career criminal.
Brown’s trial counsel argued, albeit unsuccessfully, that several of Brown’s prior convictions did
not qualify as serious drug offenses. On appeal, Brown’s appellate counsel deemed any
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challenge to Brown’s qualification as an armed career criminal frivolous. The Seventh Circuit
agreed as it rejected as frivolous Brown’s argument that four other drug convictions did not meet
the ten-year threshold for a serious drug offense due to recidivism enhancements. (Dkt. No. 101
at 3.) Therefore, Brown’s third claim fails.
Brown’s last claim concerns whether his trial counsel was ineffective because she failed
to protect him from sentencing enhancements based on heroin possession, the charges for which
the government dropped. This argument fails on two fronts. First, Brown stipulated to the
government’s use of his possession of heroin for sentencing purposes in the plea agreement that
he voluntarily and competently entered. See United States v. Smith, 218 F.3d 777, 782 (7th Cir.
2000) (rejecting argument that “uncharged conduct and conduct for which [defendant] was not
convicted” could not be used for sentencing purposes). When asked under oath whether he
reviewed his plea agreement with counsel, Brown stated that he had and that counsel answered
his questions regarding the plea agreement. (Dkt. No. 94 at 7:22-8:14.) Notably, Brown has not
unconditionally asked to set aside his plea agreement.
Second, this Court sentenced Brown to the mandatory minimum for an armed career
criminal. This was more than two years below the recommended guideline range. (See Dkt. No.
101 at 2.) As such, even if Brown could show that counsel’s assistance was ineffective, he
cannot show any prejudice as this Court could not have sentenced Brown to less than fifteen
years. As the Seventh Circuit explained, “[c]ounsel last evaluates, but rightly deems frivolous, a
challenge to the reasonableness of Brown’s 180-month prison sentence. Brown’s sentence is the
lowest the judge could have imposed and therefore cannot be deemed unreasonably high.” (Id. at
3.) Therefore, Brown’s fourth claim fails.
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Furthermore, this Court will not issue a certificate of appealability. A petitioner cannot
appeal a denial of a petition under 28 U.S.C. § 2255 unless a Court issues a certificate of
appealability. 28 U.S.C. § 2253(c); see also Buie v. McAdory, 322 F.3d 980, 981 (7th Cir. 2003).
This requirement conserves judicial resources and protects appellate courts from the burden of
unmeritorious petitions under § 2255. See Young v. United States, 124 F.3d 794, 799 (7th Cir.
1997). Courts may grant a certificate of appealability when a petitioner presents “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Gonzalez v.
Thaler, 132 S.Ct. 641, 649 n.5 (2012). A substantial showing of the denial of a constitutional
right requires the petitioner to show that reasonable jurists could find room to debate whether the
petition should have been resolved in a different manner or that the issues presented are adequate
to entitle the petitioner to proceed with his claims. See Slack v. McDaniel, 529 U.S. 473, 475
(2000).
Because this Court denied Brown’s ineffective assistance of counsel claims on the merits,
Brown must show that reasonable jurists would find this Court’s assessment of his constitutional
claims either debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting
Slack, 529 U.S. at 484). Brown has made no such showing here and this Court finds that
reasonable jurists could not find room to debate its ruling on the merits of Brown’s claims. This
is particularly true in light of the appellate history of Brown’s conviction, which has already
deemed Brown’s arguments frivolous. Therefore, Brown has not shown that a certificate of
appealability is appropriate. See 28 U.S.C. § 2253(c)(2); see also Gonzalez v. Thaler, 132 S.Ct.
at 649 n.5.
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CONCLUSION
For the reasons stated herein, this Court denies Brown’s motion attacking his sentence
and declines to issue a certificate of appealability.
________________________________________
Virginia M. Kendall
United States District Court Judge
Northern District of Illinois
Date: November 7, 2013
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