Brooks v. USA

Filing 2

OPINION AND ORDER: The petition for relief under 28 U.S.C. § 2255 is DENIED. ***Civil Case Terminated. Signed by Judge Robert L Miller, Jr on 1/28/16. (jld) (cc: Brooks) Modified on 1/29/2016 (jld).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
UNITED STATES OF AMERICA
VS.

SHAUN BROOKS, JR.

)
)
)
)
)

CAUSE NO.:3:14-CV-2011-RLM
(ARISING FROM 3:11-CR-0056-RLM)

OPINION AND ORDER
A jury found defendant Shaun Brooks, Jr. guilty of one count of possessing
a 9mm firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c) (Count 1); one count of possessing a firearm after a felony conviction, in
violation of 18 U.S.C. § 922(g)(1) (Count 3); and one count of possessing a firearm
while being an unlawful user of a controlled substance, in violation of 18 U.S.C.
§ 922(g)(3) (Count 4).1 He was sentenced to an aggregate term of 210 months’
imprisonment.
The court of appeals affirmed Mr. Brooks’s conviction but remanded for
resentencing. United States v. Brooks, 513 Fed. Appx. 612 (7th Cir. 2013). The
court of appeals held that it was error to enter judgment on both of the counts
charging simple unlawful possession of a firearm because “[c]onvictions under §
922(g) must be based on discrete incidents of gun possession, not membership
in multiple groups disqualified from possession.” Id. at 615. Mr. Brooks was
resentenced to a term of 60 months on Count 1 and 120 months on Count 3 (for

1 Mr. Brooks was acquitted on one count of possessing a .40–caliber firearm in furtherance of
a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 2).

an aggregate sentence of 180 months’ imprisonment), to be followed by a threeyear supervised release term.
Mr. Brooks filed a timely petition under 28 U.S.C. § 2255 asking that his
sentence be vacated, set aside, or corrected. His petition claims that his counsel
provided constitutionally ineffective assistance at trial by: (1) failing to move for
severance of the charges; (2) failing to object to a government witness’s testimony
regarding the facts related to Mr. Brooks’s prior felony conviction; and (3) failing
to call Mr. Brooks and three other witnesses suggested by Mr. Brooks. None of
these claims satisfies the high bar for showing a constitutional violation based
on ineffective assistance of counsel, so Mr. Brooks’s motion must be denied.

I. STANDARD OF REVIEW
A person convicted of a federal crime can challenge his sentence on the
ground that the sentence was imposed in violation of the Constitution or laws of
the United States, that the court had no jurisdiction to impose such sentence,
that the sentence exceeded the maximum authorized by law, or that the sentence
is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Issues not argued
and decided on direct appeal generally can’t be raised in a § 2255 petition unless
the petitioner can show good cause and actual prejudice for the procedural
default. Galbraith v. United States, 313 F.3d 1001, 1006 (7th Cir. 2002). A claim
of ineffective assistance of counsel not raised on direct appeal can still be raised
in a § 2255 petition. Massaro v. United States, 538 U.S. 500, 504 (2003).

An evidentiary hearing isn’t required if “the motion and files and records
of the case conclusively show that the petitioner is entitled to no relief.” 28 U.S.C.
§ 2255 (2012). After reviewing Mr. Brooks’s petition and the record of this case,
the court concludes that the factual and legal issues raised can be resolved on
the record, so no hearing is necessary. See Menzer v. United States, 200 F.3d
1000, 1006 (7th Cir. 2000) (hearing not required where the record conclusively
demonstrates that a petitioner is entitled to no relief on § 2255 motion).
II. DISCUSSION
To succeed on his ineffective assistance of counsel claim, Mr. Brooks must
show that (1) his counsel’s performance was deficient, and (2) this deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668,
687 (1984); Vinyard v. United States, 804 F.3d 1218, 1225 (7th Cir. 2015). Mr.
Brooks must show both “that counsel made errors so serious that ‘counsel’ was
not functioning as the counsel guaranteed the defendant by the Sixth
Amendment” and “that counsel’s errors were so serious as to deprive [Mr.
Brooks] of a fair trial, a trial whose result is reliable.” Strickland v. Washington,
466 U.S. at 687; see also Kimmelman v. Morrison, 477 U.S. 365, 374 (1986)
(“The essence of an ineffective-assistance claim is that counsel’s unprofessional
errors so upset the adversarial balance between defense and prosecution that
the trial was rendered unfair and the verdict rendered suspect.”).
A strong presumption exists that counsel performed effectively. See Berkey
v. United States, 318 F.3d 768, 772 (7th Cir. 2003). “A court’s scrutiny of an
3

attorney’s performance is ‘highly deferential’ to eliminate as much as possible
the distorting effects of hindsight, and we ‘must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional
assistance.’” Vinyard v. United States, 804 F.3d at 1225 (quoting Strickland, 466
U.S. at 687). The reasonableness of counsel’s performance must be evaluated
“from counsel’s perspective at the time of the alleged error and in light of all the
circumstances.” Kimmelman v. Morrison, 477 U.S. at 381.
“Even if counsel’s performance was deficient, a petitioner must also show
that ‘there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,’ meaning ‘a
probability sufficient to undermine confidence in the outcome.’” Eckstein v.
Kingston, 460 F.3d 844, 848 (7th Cir. 2006) (quoting Strickland, 466 U.S. at
694). “In weighing the effect of counsel's errors, the court must consider the
totality of the evidence. . . A verdict or conclusion that is overwhelmingly
supported by the record is less likely to have been affected by errors than one
that is only weakly supported by the record.” Eckstein v. Kingston, 460 F.3d at
848 (quoting Hough v. Anderson, 272 F.3d 878, 891 (7th Cir. 2001)).

A.

Failure to Move for Severance

Mr. Brooks first claims that his counsel was unconstitutionally deficient
for not moving to sever Count 1 (the possession of a firearm in furtherance of a
drug trafficking crime count) from the other counts in the indictment. Count 1
4

of the superseding indictment charged Mr. Brooks with conduct that occurred
in the summer of 2009, while Counts 3 and 4 charged him with conduct that
occurred “in or around 2009-May 2010.” Mr. Brooks says the only evidence
presented at trial as to Count 1 – his confession – concerned only the summer of
2009, while the witnesses’ testimony as to Counts 3 and 4 concerned events in
the fall of 2009 through May 2010. He argues that the Count 1 conduct thus
took place before and separately from the conduct underlying the other counts,
and this disconnect made joinder of the counts improper. Mr. Brooks relies on
United States v. Blanchard, 542 F.3d 1133 (7th Cir. 2008), which noted that
while joinder of drug and firearm offenses is presumed proper, “that presumption
might be overcome by, for example, a significant temporal disconnect between
the alleged offenses.” Id. at 1141.
The court needn’t reach the question of whether counsel’s performance
was deficient in failing to move for severance, because even if such a motion
would have succeeded Mr. Brooks can show no prejudice from the failure. To
succeed on his claim, Mr. Brooks must show that “had his counsel successfully
moved for severance, there was a reasonable probability that he would have been
acquitted.” United States v. Berg, 714 F.3d 490, 497 (7th Cir. 2013). Because
there was substantial evidence against Mr. Brooks on all the counts, acquittal
wasn’t reasonably probable had the counts been severed and Mr. Brooks’s claim
that his counsel was unconstitutionally deficient for failing to move for severance
is unpersuasive.
5

First, there was ample evidence to support a jury finding Mr. Brooks guilty
of being a felon in possession of a firearm independent of the evidence offered to
prove possession of a firearm in furtherance of a drug trafficking crime. Mr.
Brooks confessed to a federal agent that he owned the two firearms police
recovered from Danielle Hughes’s apartment, and on appeal the court of appeals
noted that “substantial independent evidence demonstrates the trustworthiness
of [Mr.] Brooks's confession.” United States v. Brooks, 513 F. App'x 612, 615 (7th
Cir. 2013). For example, Danielle Hughes testified that Mr. Brooks kept a firearm
under the seat of the car while they were driving together. Danielle Hughes and
her sister, Ashley Hughes, both testified that Mr. Brooks owned the two safes
recovered from Danielle Hughes’s apartment in which the police found firearms.
Mr. Brooks agreed to stipulate that he had a felony conviction punishable by
more than one year in prison and that both firearms traveled in interstate
commerce. Even if Mr. Brooks’s counsel had successfully moved for severance,
nothing in this record would allow a finding that severance would have changed
the outcome. A jury would be unlikely to acquit Mr. Brooks of being a felon in
possession due to the substantial evidence against him – including his own
admissions or stipulations to all the elements of the offense.
Insofar as Mr. Brooks attempts to argue the inverse – that spillover from
the felon in possession counts prejudiced his ability to have a fair trial on the
possession in furtherance of drug trafficking count –the claim has no merit.
Again, the government presented enough evidence at trial to support the jury’s
6

guilty verdict on the charge of possession of a firearm in furtherance of a drug
trafficking crime independent of the evidence offered for the felon in possession
counts. Mr. Brooks confessed to a federal agent that he exchanged marijuana
for a firearm, which constitutes possession of a firearm in furtherance of a drug
trafficking crime. See United States v. Doody, 600 F.3d 752, 755 (7th Cir. 2010)
(holding that exchanging drugs for a firearm is possession of a firearm in
furtherance of a drug trafficking crime). Additional evidence at trial corroborated
Mr. Brooks’s confession and also provided an alternate basis for Count 1, by
showing: Mr. Brooks’s possession of the handguns; testimony about Mr.
Brooks’s drug use by Danielle Hughes, Ashley Hughes, and Richard Rickard;
and testimony about Mr. Brooks’s driving house-to-house at night while in
possession of cash and a firearm, allowing the jury to infer drug trafficking
activity. See id. Even if Mr. Brooks’s counsel had successfully moved for
severance, the remaining evidence against Mr. Brooks as to Count 1 was strong,
so Mr. Brooks hasn’t demonstrated a reasonable probability that a jury would
have acquitted him.
Because there was substantial evidence against Mr. Brooks as to each
count separately, he can’t show that there is a reasonable probability that he
would have been acquitted had his counsel successfully moved for severance.
Because any deficient performance by his attorney in not moving for severance
didn’t prejudice him, he can’t meet Strickland’s standard for entitlement to relief
on an ineffective assistance of counsel claim.
7

B.

Failure to Object to Testimony on Mr. Brooks’s Felony Conviction

Mr. Brooks next claims that his counsel was unconstitutionally deficient
for failing to object to testimony relating to Mr. Brooks’s prior felony conviction,
which was the subject of a pre-trial stipulation. Mr. Brooks stipulated that he
has been convicted of a felony punishable by more than one year in prison in
order to avoid the government introducing evidence of his past conviction to
prove an element of the charges. See Old Chief v. United States, 519 U.S. 172,
191 (1997) (holding that admitting evidence of the name and nature of a
defendant’s prior conviction is unfairly prejudicial, where the defendant
stipulates to the fact of conviction). At trial the government questioned Danielle
Hughes about an incident in which police found twenty-five ounces of cocaine in
her car after Mr. Brooks travelled in it. Mr. Brooks argues that because he was
convicted for that cocaine trafficking, the government improperly introduced
evidence of the name and nature of his prior felony conviction after he had
stipulated to fact of conviction. He believes his counsel should have objected to
the testimony and moved for a mistrial because introducing evidence of past
drug trafficking prejudiced him in the eyes of the jury.
The government insists that the testimony as to Mr. Brooks’s past
presence in a car in which cocaine was found did not tell the jury the name and
nature of his prior conviction in violation of Old Chief. Rather, the testimony was
offered only to establish Mr. Brooks’s history of participation in the drug trade.
8

This evidence was relevant for reasons other than establishing Mr. Brooks’s
status as a felon, the government argues, because Ms. Hughes’s testimony
corroborates Mr. Brooks’s confession that he traded drugs for guns to get back
in the “dope game” and because Mr. Brooks’s employment as a drug trafficker
provided his motive for acquiring the guns.
The government is correct. The holding of Old Chief is far narrower than
Mr. Brooks understands it to be. In Old Chief, the prosecution, to prove that Mr.
Old Chief had a prior felony conviction that made him ineligible to possess a
firearm, introduced the judgment of conviction into evidence after declining the
defendant’s offer to stipulate that he had a prior felony conviction. The judgment
of conviction showed that the earlier conviction was for assault causing serious
bodily injury – a charge that might resonate with a jury trying a defendant
charged with armed assault as well as illegal possession of a firearm. Compare
Fed. R. Evid. 404(b). 517 U.S. at 174-177. The Court held that – as long as the
defendant offers to stipulate to the fact of a prior felony conviction – further
evidence of the nature of the conviction has minimal probative value when
offered to prove the fact of the prior conviction, and the risk of unfair prejudice
(as, for example, an inference that Mr. Old Chief got into a fight before and so is
more likely to have gotten into the fight he’s charged with) substantially
outweighs that minimal probative value. 517 U.S. at 180-186; Fed. R. Evid. 403.
Old Chief, then, stands for the proposition that when (a) the fact of the prior
conviction is an element the government must prove and (b) the defendant
9

stipulates to the fact of the prior conviction, further proof of the prior conviction
isn’t admissible.
The government didn’t present evidence of Mr. Brooks’s former conviction;
the relevancy of the proof of Mr. Brooks’s apparent possession of twenty-five
ounces of cocaine lay in its tendency to prove that Mr. Brooks was back in the
drug game. Mr. Brooks’s stipulation to the fact of his prior felony conviction
couldn’t serve to remove the government’s right to use otherwise admissible
evidence to prove the he was back in the drug game.
Even if his understanding of Old Chief were correct, Mr. Brooks couldn’t
succeed on this claim because he can’t show prejudice. Mr. Brooks can’t
demonstrate a reasonable probability that the result of his trial would have been
different. Mr. Brooks confessed to the charged crimes in his statements to a
federal agent. He confessed to possessing a firearm, to exchanging marijuana for
a firearm, and to being a convicted felon – thereby establishing the only factual
predicates necessary to support his convictions. As the court of appeals
concluded, “substantial independent evidence demonstrates the trustworthiness
of [Mr.] Brooks's confession” regardless of Danielle Hughes’s statements
regarding the twenty-five ounces of cocaine. United States v. Brooks, 513 F.
App'x at 615. The court of appeals didn’t even discuss the cocaine testimony
when listing the reasons Mr. Brooks’s confession was corroborated, and a
reasonable jury could have similarly found the cocaine testimony of extremely
minor significance. Mr. Brooks’s confession – coupled as it was with
10

corroborating evidence of his possession of firearms, his drug use, and his having
frequently driven house-to-house at night while in possession of a handgun and
carrying case – was sufficient to establish his guilt of all the charged offenses.
Because Mr. Brooks can’t demonstrate that he was prejudiced, he can’t
succeed on his ineffective assistance of counsel claim based on counsel’s failure
to object to testimony about his felony conviction.
C.

Failure to Call Witnesses

Finally, Mr. Brooks claims that his counsel was unconstitutionally
deficient for not calling as witnesses Mr. Brooks himself and three others that
Mr. Brooks suggested. Mr. Brooks argues that he told counsel that he, Amberly
Brown, Glenda Brickey, and Nick Askins could all testify that Mr. Brooks
purchased the Intratec 9mm firearm for $300 cash, rather than exchanging a
half of a pound of marijuana for the weapon as he told a federal agent. Mr. Brooks
claims that counsel convinced him that calling those witnesses was unnecessary
because counsel could get the possession in furtherance of a drug trafficking
crime count dismissed based on a lack of evidence corroborating his confession.
Mr. Brooks argues that the failure to call the witnesses was deficient and
prejudiced him by leaving his confession essentially unrebutted.
“[A] lawyer's decision to call or not to call a witness is a strategic decision
generally not subject to review. The Constitution does not oblige counsel to
present each and every witness that is suggested to him.” United States v. Best,
426 F.3d 937, 945 (7th Cir. 2005) (quoting United States v. Williams, 106 F.3d
11

1362, 1367 (7th Cir.1997)). Mr. Brooks must, therefore, make a strong showing
that the proposed witnesses would have been important to his defense and that
he was prejudiced when his counsel decided not to call them. Mr. Brooks can’t
meet that high bar with regard to any of his four proposed witnesses.
Mr. Brooks claims that his counsel should have called Amberly Brown and
Glenda Brickey to testify that he bought the Intratec 9mm firearm with money
and not marijuana. Mr. Brooks presents an affidavit from Ms. Brown in which
she says she was Mr. Brooks’s girlfriend and saw him exchange $300.00 for the
handgun. Mr. Brooks also presents an affidavit from Ms. Brickey, in which she
says she was also in a relationship with Mr. Brooks and overheard an argument
between Mr. Brooks and Ms. Brown about the purchase of the firearm and was
later told about the purchase, including the $300.00 price paid.
Mr. Brooks seriously overstates the value of these witnesses. Both Ms.
Brown and Ms. Brickey were in relationships with Mr. Brooks according to their
affidavits, leaving them open to impeachment for bias. Moreover, at least some
of the proffered testimony was likely inadmissible hearsay. Ms. Brickey’s
proposed testimony that she overheard an argument about the gun and was told
the purchase price, for example, would appear to offer an out-of-court declarant’s
statement for its truth and thus run afoul of the hearsay rules.
Most importantly, Mr. Brooks fails to show prejudice; he hasn’t suggested
why a jury would be swayed by the testimony of Ms. Brown and/or Ms. Brickey
over the other evidence presented at trial. When considering an ineffective
12

assistance of counsel claim, a court considers the entirety of the record because
a verdict that is “overwhelmingly supported by the record is less likely to have
been affected by errors than one that is only weakly supported by the record.”
Eckstein v. Kingston, 460 F.3d 844, 848 (7th Cir. 2006) (quoting Hough v.
Anderson, 272 F.3d 878, 891 (7th Cir. 2001)). The evidence against Mr. Brooks
was significant. Mr. Brooks’s confession to a federal agent that he acquired the
Intratec 9mm firearm in exchange for marijuana, combined with corroborating
testimony from Danielle Hughes, Ashley Hughes, and Mr. Rickard, was
substantial evidence of guilt. Mr. Brooks hasn’t shown that a jury would have
believed the testimony of two former girlfriends over his own confession to a
federal agent. Someone interrogated by the police would be unlikely to lie about
having traded drugs for a gun rather than truthfully stating that he bought it
with cash; when one has only violated gun laws, falsely confessing to a violation
of gun and drug laws is probably not the optimal defense. Given the substantial
evidence against him, Mr. Brooks can’t demonstrate a reasonable probability
that the testimony of Ms. Brown and Ms. Brickey would have altered the outcome
of his trial.
Mr. Brooks also faults his counsel for not calling him (Mr. Brooks) to testify
on his own behalf. He argues that it’s likely he would have been found not guilty
if he had been able to testify because he could have explained that he lied when
he told a federal agent that he exchanged marijuana for the Intratec 9mm
handgun. Mr. Brooks argues that his record of lying to law enforcement
13

(including a conviction for providing false information to authorities) would have
allowed the jury to believe that he would lie to a federal agent at an interrogation
but would tell the truth at trial under oath.
Mr. Brooks’s argument collapses under its own weight. Mr. Brooks’s
potential testimony that he lied to a federal agent and that he has a proven
history of lying to law enforcement would have been devastating for his defense.
The jury would have no reason to think that testimony was truthful while his
prior statement was not, and by referring to his past conviction for lying to law
enforcement Mr. Brooks would have opened the door to cross-examination about
his extensive criminal history – including six prior felony convictions. Trial
testimony could even have exposed Mr. Brooks to an obstruction of justice
charge or a sentencing enhancement. See Taylor v. United States, 287 F.3d 658,
662 (7th Cir. 2002). Mr. Brooks’s counsel made a tactical decision to advise Mr.
Brooks not to testify that he lied to a federal agent when he confessed to
exchanging marijuana for the Intratec 9mm handgun, and Mr. Brooks accepted
that advice. Counsel’s conduct fell well within the wide bounds of professional
strategic judgment to which counsel is entitled under Strickland.
Finally, Mr. Brooks hasn’t shown himself to be entitled to relief on his
claim related to Nick Askins’s testimony. “A Strickland claim based on counsel’s
failure to investigate a potential witness requires a specific, affirmative showing
of what the missing witness’s testimony would be, and this typically requires at
least an affidavit from the overlooked witness.” Thompkins v. Pfister, 698 F.3d
14

976, 987 (7th Cir. 2012). Mr. Brooks hasn’t provided an affidavit from Mr.
Askins, instead explaining that he couldn’t find Mr. Askins to get an affidavit
from him. Mr. Brooks also hasn’t provided any specific details about Mr. Askins’s
potential testimony, only generally indicating that Mr. Askins would testify that
the firearm was purchased rather than traded for marijuana. Because Mr.
Brooks didn’t secure an affidavit from Mr. Askins or even provide reasonably
specific and detailed information about the substance of Mr. Askins’s testimony,
the court can’t conclude that counsel’s decision to not call Mr. Askins amounted
to ineffective assistance.

III. Conclusion
Based on the foregoing, the court DENIES Mr. Brooks’s § 2255 motion to
vacate his sentence. (Doc. No. 117).
SO ORDERED.
ENTERED: January 28, 2016

/s/ Robert L. Miller, Jr.
Judge
United States District Court

15