Brooks v. United States of America Respondent has 30 days from date Petitioner files supp pleading to file a responsive pleading-see order at [2].
Filing
30
ORDER denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) ( Criminal Action CR09-4058) and 15 SUPPLEMENTAL MOTION to Vacate, Set Aside or Correct Sentence (2255). The Clerk of Court shall issue a certificate of appealability as provided above. See text of Order. Signed by Senior Judge Donald E OBrien on 10/29/13. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
GARY LEE BROOKS,
Petitioner,
No. 11-CV-4096-DEO
v.
ORDER
UNITED STATES OF AMERICA,
Respondent.
_______________
I.
INTRODUCTION
This matter is before this Court on Petitioner, Gary Lee
Brooks’ [hereinafter Mr. Brooks], 28 U.S.C § 2255 Petition,
Docket No. 1, and Supplemental Motion to Vacate, Set Aside, or
Correct Sentence, Docket No. 15.
hearing on April 22, 2013.
The parties appeared for
After listening to the parties’
arguments, the Court took the matter under consideration and
now enters the following.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On November 19, 2009, a Grand Jury returned a three-count
Indictment against Mr. Brooks.
The Grand Jury charged Mr.
Brooks with (Count I) conspiracy to distribute and possess
with the intent to distribute:
(a) 50 grams or more of actual
(pure) methamphetamine, (Count II) possession with intent to
distribute and aid and abet the possession with the intent to
distribute
50
grams
or
more
of
methamphetamine
mixture
containing 5 grams or more of actual (pure) methamphetamine
within 1,000 feet of a protected location, and (Count III)
forfeiture of property and proceeds from Count I and Count II.
Mr. Brooks was initially represented by Public Defender
Michael Smart.
Attorney David Eastman took over Mr. Brooks’
representation on April 24, 2009.
On April 5, 2010, Mr.
Brooks appeared before this Court and plead guilty pursuant to
N. Carolina v. Alford, 400 U.S. 25 (1970), to Counts I and II
of the Indictment.
Because Mr. Brooks plead to 50 grams of
actual (pure) methamphetamine, the statutory mandatory minimum
was 120 months as set forth in 21 U.S.C. § 841(b)(1)(A)(viii).
This Court sentenced Mr. Brooks to the statutory minimum, 120
months’
imprisonment
on
Count
One,
and
120
months’
imprisonment on Count Two of the Indictment, to be served
concurrently, and ten years supervised release on Count One
and
eight
years
supervised
release
on
Count
Two
of
the
Indictment, to be served concurrently.
Mr. Brooks appealed his case to the 8th Circuit Court of
Appeals. Mr. Brooks’ appeal appears to have raised one issue.
2
The 8th Circuit stated, “[Mr. Brooks’ appellate counsel] has
filed a brief under Anders v. California, 386 U.S. 738, 87 S.
Ct. 1396, 18 L. Ed. 2d 493 (1967), raising the argument that
the government acted in bad faith in refusing to move under 18
U.S.C. § 3553(e) for a sentence reduction based on substantial
assistance.”
United States v. Brooks, 415 F. App'x 731 (8th
Cir. 2011).
The 8th Circuit denied Mr. Brooks’ appeal,
stating “[t]he challenge to the sentence is unavailing: there
is no indication in the record that the government's decision
not to move for a sentence reduction was improper... [h]aving
independently reviewed the record under Penson v. Ohio, 488
U.S.
75,
80
(1988),
we
Accordingly, we affirm.”
find
no
nonfrivolous
issues.
Brooks, 415 F. App'x at 731.
On October 31, 2011, Mr. Brooks filed the present pro se
Petition for habeas relief. After considering Mr. Brooks’ pro
se filing, this Court entered an Initial Review Order on the
same date. In that Initial Review Order, the Court sua sponte
appointed
Mr.
Brooks
counsel.
Attorney
appointed to represent Mr. Brooks.
Jay
Denne
was
Shortly after being
appointed, Mr. Denne filed a Motion to Withdraw, stating he
had discovered a conflict of interest when reviewing discovery
3
in Mr. Brooks’ case. The Court granted his Motion to Withdraw
and
appointed
attorney.
Mr.
Douglas
Roehrich
as
Mr.
Brooks’
new
Mr. Roehrich filed a Supplemental Petition and
Brief on March 12, 2012.
III.
STANDARD
28 U.S.C. § 2255(a) provides,
A prisoner in custody under sentence of a
court established by Act of Congress
claiming the right to be released upon the
ground that the sentence was imposed in
violation of the Constitution or law of the
United States, or that the court was
without
jurisdiction
to
impose
such
sentence, or that the sentence was in
excess of the maximum authorized by law, or
is otherwise subject to collateral attack,
may move the court which imposed the
sentence to vacate, set aside or correct
the sentence.
IV.
ISSUES
Mr. Brooks’ initial pro se Petition, Docket No. 1, raises
several issues.
pro se issues as:
The Government’s brief sets out Mr. Brooks’
(I) the sentencing court erred by imposing
a 10 year mandatory minimum on Count One of the Indictment;
(II) Insufficient evidence existed to convict Movant under
Title 21, United States Code, Section 860 and Title 18, United
States Code, Section 2; (III) the government lacked subject
4
matter jurisdiction to prosecute Movant under Title 21, United
States Code, Section 846 in Count Two of the Indictment; (IV)
Movant’s sentence was illegal pursuant to the double jeopardy
clause; (V) the Court erred in the application of sentencing
guidelines and did not have subject matter jurisdiction to
impose a sentence under Title 21, United States Code, Section
860; (VI) the government lacked subject matter jurisdiction to
prosecute Movant on Count One of the Indictment; and (VII)
Title 21, United States Code, Section 861(a) does not grant
jurisdiction
of
the
subject
matter
unless
the
evidence
supports the statutory language and that Title 21, United
States Code, Sections 846 and 860(a) and Title 18, United
States Code, Section 2 are “convoluted” and “mind bogling
(sic).
(See Docket No. 1, p. 14-15.)
After laying out the
issues individually, Mr. Brooks asserts that each also shows
ineffective assistance of counsel.
Mr.
Brooks’
appointed
attorney
filed
a
Supplemental
Petition and Brief in this case which raises and briefs one
issue,
ineffective
assistance
5
of
counsel
related
to
Mr.
Brooks’ guilty plea.1
The Court will address these issues in
turn.
V.
ANALYSIS
A.
Pro Se Issues
As set out above, Mr. Brooks’ pro se pleading raises
seven different grounds for relief.
The Government argues
that Mr. Brooks failed to exhaust these issues on direct
appeal.
“Section 2255 relief is not available to correct errors
which could have been raised at trial or on direct appeal,
absent a showing of cause and prejudice..., or a showing that
the alleged errors were fundamental defects resulting in a
complete miscarriage of justice...”
8
F.3d
1313,
1314
(8th
Cir.
Ramey v. United States,
1993)
(internal
citations
omitted).
There is no evidence in the record presently before the
Court that Mr. Brooks raised the seven issues set out above on
direct appeal. Accordingly, Mr. Brooks must show the cause of
1
Mr. Roehrich states in the Supplemental Petition and
Brief that, while he does not expound upon Mr. Brooks’ pro se
arguments, those arguments are not waived. Docket No. 15, p.
5.
6
those issues and the resulting prejudice or that the errors
resulted in miscarriage of justice.
Id.
Mr. Brooks has
failed to make such a showing; nor has Mr. Brooks alleged any
related issue, such as new evidence or actual innocence.
(“A
claim
the
of
actual
innocence
serves
as
a
gateway
for
petitioner to argue his or her other claims before the habeas
court.”
Golden v. United States, 2013 WL 452862 (N.D. Iowa
2013)(citing House v. Bell, 547 U.S. 518, 536-37 (2006)).)
Accordingly, those seven issues are procedurally barred in
this habeas case.
Mr.
Brooks
also
argues
that
ineffective assistance of counsel.
these
issues
represent
The Court has considered
the issues on their merits, using the ineffective assistance
standard discussed below, and, to the extent the issues have
merit, has found no prejudicial error.
Mr. Brooks’ pro se
issues must be denied.
B.
Ineffective Assistance of Counsel
The primary issue raised in Mr. Brooks’ Supplemental
Petition is ineffective assistance of counsel related to the
guilty plea.
7
“[T]he
right
to
counsel
assistance of counsel.”
771 (1970).
guarantees
is
the
right
to
effective
McMann v. Richardson, 397 U.S. 759,
The Fourteenth Amendment Due Process Clause
the
right
to
a
fair
trial.
Washington, 466 U.S. 668, 684-85 (1984).
Strickland
v.
The Sixth Amendment
guarantees the right to assistance of counsel.
U.S. Const.
Amend. VI. In Strickland, the Supreme Court elaborated on the
relationship between the Fourteenth and Sixth Amendments:
The benchmark for judging any claim of
ineffectiveness must be whether counsel’s
conduct
so
undermined
the
proper
functioning of the adversarial process that
the trial cannot be relied on as having
produced a just result.
466 U.S. at 686.
The moving party must demonstrate two components to
establish ineffective assistance of counsel:
conduct was deficient, and (2) prejudice.
(1) counsel’s
466 U.S. at 687.
Counsel’s conduct is deficient when it is unreasonable “under
prevailing professional norms.”
Padilla v. Kentucky, 130 S.
Ct. 1473, 1481 (2010) (quoting Strickland, 466 U.S. at 688).
Counsel’s conduct is prejudicial if “counsel’s errors” are so
serious that they “deprive the defendant of a fair trial . .
. .”
466 U.S. at 687.
In other words, a petitioner must show
8
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.”
does
not
require
“preponderance
probability
outcome.”
466 U.S. at 694.
of
a
different
the
sufficient
A reasonable probability
outcome
evidence”
to
but
undermine
be
does
proven
by
require
confidence
in
a
“a
the
Id.
The Strickland standard is applicable to counsel’s advise
regarding pleas of guilty.
As the Supreme Court has stated:
The longstanding test for determining the
validity of a guilty plea is whether the
plea represents a voluntary and intelligent
choice among the alternative courses of
action open to the defendant... Where, as
here, a defendant is represented by counsel
during the plea process and enters his plea
upon
the
advice
of
counsel,
the
voluntariness of the plea depends on
whether counsel's advice was within the
range of competence demanded of attorneys
in criminal cases.
Hill v. Lockhart, 474 U.S. 52, 56 (1985)(internal citations
omitted).
In
this
involuntary
case,
because
Mr.
the
Brooks
argues
evidence
that
failed
to
his
plea
establish
was
he
conspired to distribute 50 grams of methamphetamine, and his
counsel was ineffective for advising him to plead guilty to
9
that amount.
In his brief, Mr. Brooks argues that:
The drug quantity of 50 grams of pure
methamphetamine in Count I, however, was
not
supported
by
the
evidence
and
ultimately was not even the drug quantity
that U.S. Probation attributed to the
defendant by a preponderance of the
evidence in the pre- sentence investigation
report. Counsel would have had all of the
laboratory reports and police reports
available prior to the defendant’s plea and
presumably he was fully aware of the facts.
Although
it
is
arguable
that
the
methamphetamine discovered in the motel
room could possibly have been found by a
jury to be attributable to the defendant,
this would have been a stretch considering
that such a finding would not have been
supported by anything other than that the
defendant had obtained a quantity of
methamphetamine from the women who rented
the motel room.
Also, it is not only the element of drug
quantity that is questionable here but
whether or not the government had the
evidence to prove beyond a reasonable doubt
that the defendant was a knowing and
voluntary member of a conspiracy to
distribute methamphetamine.
A single
purchase
of
methamphetamine
that
he
intended to distribute to others does not
establish that the defendant was a member
of a conspiracy with the individuals he
purchased his methamphetamine from.
Should a conspiracy even be proven there
has to be a voluntary participation in the
conspiracy, which is something Brooks
apparently disputed in this case.
Docket No. 15, p. 8-9.
Mr. Brooks concludes by saying:
Under the circumstances of this case, both
10
prongs of the Strickland test are met.
Trial
counsel
failed
to
perform
an
essential
duty
when
he
advised
the
defendant
to
plead
guilty
to
being
responsible for a drug quantity of 50 grams
or more of pure methamphetamine when the
evidence did not support such a quantity
beyond a reasonable doubt. In regard the
second prong of the Strickland test, Brooks
was prejudiced because his plea resulted in
a statutory mandatory minimum sentence of
10 years.
Had he pled guilty to the
correct drug quantity that was less than 50
grams of pure methamphetamine the statutory
mandatory minimum sentence would have been
five
years
instead
of
10
years.
Considering that his federal sentencing
guideline range was 70 to 87 months, the
defendant would definitely have received a
sentence of less than 10 years if he was
sentenced within this range. Nothing from
the record appears to support any potential
that the Court would have varied upwards
from the guideline range up to 10 years.
Consequently, ... Gary Brooks’ plea was not
made knowingly or voluntarily...
Docket No. 15, p. 9-10.
It
appears
to
argument is this:
the
Court
that
Mr.
Brooks’
essential
Mr. Brooks bought 33.97 grams of actual
methamphetamine from two women.
Mr. Brooks was arrested
before he could do anything with the methamphetamine.2
Mr.
Brooks was subsequently charged with conspiracy to distribute
more than 50 grams, based on the methamphetamine on his person
2
He alleges it was for personal use, while
Government argues that quantity was for distribution.
11
the
and the methamphetamine that was in the hotel room where the
two
women
he
located.3
purchased
his
methamphetamine
from
where
Mr. Brooks argues that a jury would not have
imputed the methamphetamine found in the hotel room to him.
Consequently, he argues that it was an error for his trial
counsel to allow him to plead guilty to a quantity in excess
of 33.97, the amount in his personal possession at the time of
the arrest.
undisputed
For the purposes of this habeas case, it is
that
Mr.
Brooks
had
33.97
grams
of
actual
methamphetamine in his actual possession, and the hotel room
contained in excess of 50 grams of actual methamphetamine.
Additionally, it is undisputed that officers arrested Mr.
Brooks and raided the motel room on the same day.
Mr.
Brooks’
contention
is
simply
that
Instead,
attributing
the
methamphetamine in the hotel room to Mr. Brooks would be a
“stretch”
because
this
was
the
first
time
he
purchased
methamphetamine from the hotel room.
Mr. Brooks argues, ultimately, that he was not part of
any conspiracy because he only made one purchase for personal
use. To prove a conspiracy, the government must show that (1)
a conspiracy existed, (2) that the defendant was aware of the
3
Mr. Brooks alleges he never visited the hotel room.
12
conspiracy
and
knowingly
joined
Rolon–Ramos,
its
502
conspiracy's
purpose,
the
F.3d
(3)
that
conspiracy.
750,
existence
circumstantial
and
754
may
evidence.”
United
(8th
be
Cir.
proved
“[A]
Id.
the
defendant
States
2007).
by
v.
“The
direct
defendant
or
may
be
convicted for even a minor role in a conspiracy, so long as
the government proves beyond a reasonable doubt that he or she
was a member of the conspiracy.” United States v. Lopez, 443
F.3d 1026, 1030 (8th Cir. 2006).
“The agreement need not be
formal; a tacit understanding will suffice.” United States v.
McCarthy,
97
relationship
F.3d
of
1562,
buyer
and
1568
(8th
seller
Cir.
absent
1996).
any
prior
“The
or
contemporaneous understanding beyond the mere sales agreement
does not prove a conspiracy....”
United States v. Prieskorn,
658 F.2d 631, 634 (8th Cir. 1981).
However, a large quantity
of drugs, rather than amounts consistent with personal use,
supports an inference that the defendant knew “he was part of
a larger venture that extended beyond his participation.” Id.
at 634–35 (internal citation omitted).
13
As stated in the Government’s brief, had Mr. Brooks
proceeded to trial, the Government would have offered the
drugs found in the hotel room and evidence of the conspiracy.
The Court cannot predict exactly what a jury would have said
in those circumstances. Luckily, the Court need not make that
determination, because the standard outlined above asks the
Court
only
to
determine
if
the
attorney’s
conduct
was
deficient and if the deficiency was prejudicial.
Under these facts, the Court cannot say that Mr. Brooks’
counsel was deficient.
As noted in the Government’s brief,
the Government had evidence that Mr. Brooks had a significant
quantity of drugs on his person, that he had purchased those
drugs to distribute, and the hotel room contained enough
methamphetamine to take Mr. Brooks’ quantity over 50 grams of
actual methamphetamine.
Mr. Eastman, Mr. Brooks’ trial counsel, stated that the
8th Circuit has found even a single purchase sufficient to be
considered part of a methamphetamine conspiracy.
#18, Att. 1, p. 5.
Docket No.
Accordingly, Mr. Eastman thought it was
likely that Mr. Brooks would be convicted as part of the
conspiracy and would not receive acceptance of responsibility
if he continued to trial. The Court believes Mr. Eastman made
14
a
reasonable,
Accordingly,
strategic
the
Court
choice
cannot
given
say
that
those
Mr.
facts.
Eastman’s
performance was deficient when he advised Mr. Brooks to plead
to the charges.
Similarly, the Court cannot say that Mr.
Eastman’s performance prejudiced Mr. Brooks.
Had Mr. Brooks
proceeded to trial, he may well have been convicted.
Had a
jury convicted Mr. Brooks of conspiracy to distribute over 50
grams of methamphetamine, he would not have received credit
for acceptance of responsibility.
Without that credit, Mr.
Brooks
even
may
have
received
an
higher
sentence.
Accordingly, Mr. Brooks has failed to show either deficiency
or prejudice under the Strickland standard and his Petition
must be denied.
VI.
CERTIFICATE OF APPEALABILITY
Under the Code, in most situations, a party must receive
a Certificate of Appealability before that party can appeal a
district court’s ruling on a habeas petition to the circuit
court.4
28
U.S.C.
§2253(c)(2)
gives
the
District
Court
discretionary power to grant a Certificate of Appealability.
Under that section, the Court should only issue a certificate
of appealability if “the applicant has made a substantial
4
See, generally, 28 U.S.C. §2253.
15
showing of the denial of a constitutional right.”
U.S.
473,
482
(2000)(citing
28
Slack v.
McDaniel,
529
U.S.C.
§
2253(c)).
In Slack, the Supreme Court defined “substantial
showing” as follows:
To obtain a [certificate of appealability]
under §2253(c), a habeas prisoner must make
a substantial showing of the denial of a
constitutional right, a demonstration that,
under Barefoot [v. Estelle, 463 U.S. at
894,], includes showing that reasonable
jurists could debate whether (or, for that
matter, agree that) the petition should
have been resolved in a different manner or
that the issues presented were “‘adequate
to
deserve
encouragement
to
proceed
further.’” Barefoot, 463 U.S. at 893, and
n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090
(sum[ming] up the “substantial showing”
standard).
Slack, 529 U.S. at 483-84. See also Garrett v. United States,
211 F.3d 1075, 1076-77 (8th Cir. 2000).
Mr. Brooks’ counsel briefed one primary issue in the
Supplemental
related
to
Petition,
the
guilty
ineffective
plea.
Even
assistance
though
of
the
counsel
Court
is
satisfied with its ruling, the Court is persuaded that it is
possible that “reasonable jurists could debate whether...the
petition should have been resolved in a different manner”.
Slack, 529 U.S. at 483-84.
The existence of the circuit
courts and the Supreme Court is a testament to the fact that
16
district courts are not infallible.
The Court's decision in
this case was a judgment call, and this Court is of the
opinion that all its judgment calls should be reviewable. Mr.
Brooks’ claim is sufficiently well founded that a review would
be appropriate.
The case of Tiedeman v. Benson, 122 F.3d 518 (8th Cir.
1997) states that in granting a Certificate of Appealability,
this Court must state the issues upon which the applicant may
have
made
a
substantial
constitutional rights.
showing
of
the
denial
of
his
Accordingly, Mr. Brooks’ may appeal
the ineffective assistance of counsel claim briefed by his
current attorney, Mr. Roehrich.
VII.
CONCLUSION
Mr. Brooks’ Petition for habeas relief is denied.
The
Clerk of Court shall issue a certificate of appealability as
provided above.
IT IS SO ORDERED this 29th day of October, 2013.
__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?