Brown v. USA

Filing 10

MEMORANDUM AND ORDER, The Court GRANTS Assistant Federal Defender Judith A. Kuenneke's Motion Doc. 8 to Withdraw and DENIES Petitioner's Motion Doc. 9 for Leave to Amend. The Court DENIES petitioner Brown's § 2255 Motion (Doc. 1) and DISMISSES this action. The Court DIRECTS the Clerk of Court to enter judgment in this matter. The Court DENIES a certificate of appealability. Signed by Judge J. Phil Gilbert on 4/20/2017. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KEVIN L. BROWN,
Petitioner,
vs.

Case No. 16-cv-00719-JPG

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Kevin L. Brown’s Motion to Vacate,
Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). Also before the Court is
Assistant Federal Defender Judith A. Kuenneke’s Motion (Doc. 8) to Withdraw as counsel for
petitioner and petitioner’s Motion [Doc. 9] to Amend his § 2255.
1. Background.
On February 27, 2015, Mr. Brown pleaded guilty to conspiracy to manufacture
methamphetamine in violation of 21 U.S.C. § 846. See United States v. Brown, Case No. 14-cr40098 (Doc. 21). On May 27, 2015, the undersigned Judge sentenced Mr. Brown to 188 months
imprisonment, four years supervised release, a $100 special assessment, and a $200 fine. (Doc.
30, 14-cr-40098). Mr. Brown filed a direct appeal. His appellate counsel filed an Anders 1brief
and requested to withdrawn. The United States Court of Appeals granted appellate counsel’s
motion to withdraw and dismissed the petitioner’s appeal on January 7, 2016.
Mr. Brown’s § 2255 motion was timely filed on June 28, 2016. In it, Mr. Brown makes
the follows claims:

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Anders v. California, 386 U.S. 738 (1967). Counsel could put forth no non-frivolous arguments.

a.

Ground One – that his trial counsel was ineffective for failing to negotiate a written
plea agreement and failed to argue against the drug quantity attributed to the
petitioner in the presentencing report;

b. Ground Two – also that his trial counsel was ineffective for failing to negotiate a plea
agreement that could have resulted in a lower drug quantity amount being attributed
to the petitioner; and
c. Ground Three – that the Supreme Court’s holding in Johnson v. United States, 135
S.Ct. 2551 (2015) and United States v. Welch, 136 S.Ct. 1257 (2016), required that he
should be resentenced without a career offender enhancement.
The Court will now consider whether Mr. Brown’s allegations survive this threshold
review.
2. Analysis.
The Court must grant a § 2255 motion when a defendant’s “sentence was imposed in
violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255.

However,

“[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations.” Prewitt
v. United States, 83 F.3d 812, 816 (7th Cir. 1996). “Relief under § 2255 is available only for
errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental
defect which inherently results in a complete miscarriage of justice.” Kelly v. United States, 29
F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted). It is proper to deny a § 2255 motion
without an evidentiary hearing if, “the motion and the files and records of the case conclusively
demonstrate that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see Sandoval v.
United States, 574 F.3d 847, 850 (7th Cir. 2009).

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The Sixth Amendment to the Constitution provides that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S.
Const. amend. VI. This right to assistance of counsel encompasses the right to effective
assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970); Watson v.
Anglin, 560 F.3d 687, 690 (7th Cir. 2009). A party claiming ineffective assistance of counsel
bears the burden of showing (1) that counsel’s performance fell below objective standards for
reasonably effective representation and (2) that this deficiency prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 688-94 (1984); United States v. Jones, 635 F.3d 909,
915 (7th Cir. 2011); Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009), cert. denied, 130
S. Ct. 2431 (2010); Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000).
To satisfy the first prong of the Strickland test, the petitioner must direct the Court to
specific acts or omissions of his counsel. Wyatt, 574 F.3d at 458. The Court must then consider
whether in light of all of the circumstances counsel’s performance was outside the wide range of
professionally competent assistance. Id. The Court’s review of counsel’s performance must be
“highly deferential[,] . . . indulg[ing] a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689; accord Wyatt,
574 F.3d at 458. Counsel’s performance must be evaluated keeping in mind that an attorney’s
trial strategies are a matter of professional judgment and often turn on facts not contained in the
trial record. Strickland, 466 U.S. at 689. The Court cannot become a “Monday morning
quarterback.” Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990).
To satisfy the second prong of the Strickland test, the plaintiff must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings
would have been different, such that the proceedings were fundamentally unfair or unreliable.

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United States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011); Fountain, 211 F.3d at 434; Adams v.
Bertrand, 453 F.3d 428, 435 (7th Cir. 2006). “A reasonable probability is defined as one that is
sufficient to undermine confidence in an outcome.” Adams, 453 F.3d at 435 (citing Strickland,
466 U.S. at 694).
The failure to hear a claim for ineffective assistance of counsel in a § 2255 motion is
generally considered to work a fundamental miscarriage of justice because often such claims can
be heard in no other forum. They are rarely appropriate for direct review since they often turn on
events not contained in the record of a criminal proceeding. Massaro, 538 U.S. at 504-05;
Fountain, 211 F.3d 433-34. In addition, the district court before which the original criminal trial
occurred, not an appellate court, is in the best position to initially make the determination about
the effectiveness of counsel in a particular trial and potential prejudice that stemmed from
counsel’s performance. Massaro, 538 U.S. at 504-05. For these reasons, ineffective assistance of
counsel claims, regardless of their substance, may be raised for the first time in a § 2255 petition.
In petitioner’s motion to amend, he states that he is aware that his claims under Johnson
are now meritless and voluntarily requests that the claim to be dismissed. (Doc. 9 at 2). As to
Grounds One and Two, both are basically the same claim – that petitioner’s counsel failed to
argue that the drug amount accessed to the petitioner was incorrect and/or excessive and that
petitioner’s counsel failed to obtain a written plea agreement.
The drug amount issue was addressed on appeal and as noted by the appellate court, “the
amount of drugs attributable to Brown was irrelevant because his sentence was controlled by his
career-offender designation.” USA v. Brown, 15-2231 (7th Cir. January 7, 2016). To establish
ineffective assistance of counsel, a prisoner must show not only that the lawyer’s work as a
whole was objectively deficient but also that prejudice ensued. See Wright v. Van Patten, 128 S.

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Ct. 743 (2008). Here, there was no prejudice to the petitioner because even if a less amount of
pseudoephedrine was negotiated, petitioner’s base offense level of 30 would have remained the
same. It is also noted that petitioner’s counsel did object to the amount of pseudoephedrine
attributed to the petitioner. (Sealed Doc. 25).

As such, petitioner’s counsel was not ineffective

in failing to argue against the Government’s drug amount calculations.
Next, failure to negotiate a plea agreement is not a sufficient basis for an ineffective
assistance of counsel claim.
The guarantee of counsel in the sixth amendment is designed to promote fair trials
leading to accurate determinations of guilt or innocence. The Constitution does
not ensure that lawyers will be good negotiators, locking in the best plea bargains
available. U.S. v. Springs, 988 F.2d 746, 749 (7th Cir. 1993)
[T]he successful negotiation of a plea agreement involves factors beyond the
control of counsel, including the cooperation of his client, clearly absent here, as
well as the cooperation of the prosecutor, who has no obligation to offer such an
agreement. U.S. v. Hall, 212 F.3d 1016, 1022 (7th Cir. 2000)
Finally, petitioner states no actual prejudice within any of his claims.

The simple

statement that his counsel’s performance, “materially prejudiced the Petitioner,” does not
provide the Court with any factual basis that petitioner was prejudiced. As stated above, the drug
amount did not prejudice the petitioner since he was sentenced under the career offender
designation. There is no evidence – or any reference – that government had offered or was
willing to offer – a plea agreement. And if the government had offered an agreement, would
such an agreement actually have changed his sentencing guidelines?
Therefore, petitioner has failed to satisfy the second prong of the Strickland test. He has
failed to show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceedings would have been different.
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The last motion to be addressed is petitioner’s Motion [Doc. 9] for leave to Amend his
Petition. He request leave to add the claim that:
[T]rial counsel was ineffective prior to and during Brown’s sentencing hearing in
his written and oral arguments concerning the Government’s relevant conduct
sentencing enhancement arguments pursuant to U.S.S.G. § 3E1.1.
Specifically, petitioner is once again arguing that his “relevant conduct drug quantity
involvement was vastly overstated materially prejudiced Brown pursuant to § 351.1.” This issue
has been addressed above and petitioner provides no new information that would justify leave to
amend.
3. Certificate of Appealability.
Having denied petitioner’s motion, the Court must grant or deny a certificate of
appealability. See Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United
States District Courts; 28 U.S.C. § 2253(c). Section 2253(c)(2) provides that a certificate of
appealability may issue only if a petitioner has made a substantial showing of the denial of a
constitutional right. Mr. Brown has made no such showing. Therefore, the Court denies a
certificate of appealability. Pursuant to Rule 11(a), Mr. Brown may not appeal the denial of a
certificate of appealability, but he may seek a certificate from the Court of Appeals for the
Seventh Circuit.
4. Conclusion.
Accordingly, the Court GRANTS Assistant Federal Defender Judith A. Kuenneke’s
Motion2 [Doc. 8] to Withdraw and DENIES Petitioner’s Motion [Doc. 9] for Leave to Amend.
The Court furthers DENIES petitioner Brown’s § 2255 Motion (Doc. 1) and DISMISSES this

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Motion to Withdraw was based upon counsel’s agreement that petitioner’s Johnson issue had been rendered
meritless and that there was an actual conflict with the representation of petitioner with regard to Grounds One
and Two. However, the conflict issue is moot based on the Court’s findings in this threshold order.

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action. The Court DIRECTS the Clerk of Court to enter judgment in this matter. Finally, the
Court DENIES a certificate of appealability.
IT IS SO ORDERED.
DATED: 4/20/2017
s/J. Phil Gilbert
J. PHIL GILBERT
U.S. DISTRICT JUDGE

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