Brown v. USA - 2255
MEMORANDUM AND ORDER DENYING 300 Motion to Vacate (2255) as to Elliott Brown (2). Signed by Judge Marvin J. Garbis on 1/18/2017. (Civil Action WDQ-12-2802) (c/m) (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA
CRIMINAL NO. MJG-08-0415
MEMORANDUM AND ORDER DENYING § 2255 MOTION
The Court has before it Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence [ECF Nos. 299 & 300].
The Court has held
a hearing including the presentation of evidence.
The Court has made
its factual findings based upon its evaluation of the evidence and
the reasonable inferences drawn therefrom.
On June 1, 2009, Defendant Elliott Brown (“Petitioner”)
convicted by Judge Quarles on a plea of guilty to one Count of
conspiracy to distribute and possess with intent to distribute
controlled substance in violation of 21 U.S.C. § 846.
On June 9, 2009, Petitioner, by trial counsel,1 filed a Motion
to Withdraw Guilty Plea [ECF No. 178] and, on March 12, 2010, filed
pro se a supplemental motion seeking to withdraw the guilty plea [ECF
On March 17, 2010, Judge Quarles appointed Richard Bardos,
David Solomon, Esquire.
Esquire who represented Petitioner through sentencing and appeal.
On July 29, 2010, Judge Quarles denied Petitioner leave to withdraw
the guilty plea. See Memorandum Opinion [ECF No. 265] filed July 30,
At sentencing, on July 29, 2010, Judge Quarles found that
Petitioner’s Offense Level was 36 and Criminal History Category was
VI, yielding a Guidelines Range of 324 to 405 months. Petitioner was
sentenced to 360 months of incarceration.
Judgement was entered on
July 30, 2010. [ECF No. 267].
On August 3, 2010, Petitioner appealed to the United States
Court of Appeals for the Fourth Circuit. [ECF No. 272].
On June 16,
2011, the appellate court issued its Judgment affirming the
conviction and sentence. [ECF No. 288].
On September 14, 2011, (90
days after June 16) the time for Petitioner to seek a writ of
Therefore, the deadline for filing a § 2255
motion was September 14, 2012.
On that date, Petitioner filed pro
se documents deemed to constitute a timely § 2255 motion. [ECF Nos.
299 & 300].
On May 20, 2014, Judge Quarles appointed Mary Davis, Esquire
to represent Petitioner. [ECF No. 341].
On January 29, 2016, the instant case was reassigned to the
On January 11, 2017, the Court held a hearing on the instant
Petitioner asserts that he was denied the effective assistance
of counsel due to counsel's failure to:
Adequately represent him in regard to his guilty
plea, rendering the plea involuntary.
Adequately represent him in regard to the district
court’s finding that he was a career offender.
Communicate to him an offer of a plea agreement
calling for a 188 month sentence.
Adequately represent him in regard to the district
court’s finding of responsibility for 30 kilograms
Ineffective Assistance of Counsel Standard
In order to prevail on a claim that counsel's representation
violated his Sixth Amendment right to effective assistance of
counsel, Petitioner must show (1) "that counsel's representation
fell below an objective standard of reasonableness,"2 and (2) "that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
Strickland v. Washington, 466 U.S. 668, 687-88, 694
Thus overcoming a presumption that counsel's conduct (i. e.
representation of the criminal defendant) was reasonable. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
"A reasonable probability is a probability sufficient to
undermine confidence in the outcome [of the proceedings]."
Petitioner’s Asserted Grounds
Failure to Communicate Offer
Petitioner contended that trial counsel failed to communicate
to him a Government offer of a plea agreement calling for a 188 month
sentence and that, were that offer made, he would have accepted it.
A criminal defendant is entitled to the effective
representation of counsel in regard to plea bargaining.
Defendants have a Sixth Amendment right to
counsel, a right that extends to the
negotiations defendants are "entitled to the
effective assistance of competent counsel."
Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376, 1384 (2012)(internal
This includes the right to be informed of offered plea
As stated by Justice Kennedy in Missouri v. Frye, 566
U.S. ___, 132 S. Ct. 1399, 1408 (2012):
This Court now holds that, as a general
rule, defense counsel has the duty to
communicate formal offers from the prosecution
to accept a plea on terms and conditions that
may be favorable to the accused. . . . When
defense counsel allowed the offer to expire
without advising the defendant or allowing him
to consider it, defense counsel did not render
the effective assistance the Constitution
The Court conducted an evidentiary hearing at which Petitioner
and trial counsel testified.
The Court finds that the Government
made three plea agreement offers to Petitioner, none of which called
for a sentence of 188 months.
The first offer, made November 14, 2008, provided that
Petitioner’s base Offense Level was 38, to be reduced by three levels3
to 35 with a Sentencing Guidelines range of 292 to 365 months if
Petitioner was held to be a career offender, or 262 to 327 months
if he was not held to be a career offender.
The Government agreed
to recommend a sentence within the determined Guidelines range.
Petitioner did not accept this offer.
The second offer, made May 5, 2009, provided for a base Offense
Level of 37 to be reduced by three levels4 to 34 with a Sentencing
Guidelines range of 262 to 327 months.
The agreement was to be
pursuant to Rule 11(c)(1)(C)5 “guaranteeing” a sentence of 262
Petitioner did not accept the offer.
acceptance of responsibility.
acceptance of responsibility.
Rule references herein refer to the Federal Rules of
The third offer, made June 1, 2009, provided for a base Offense
Level of 38, to be reduced by two levels6 to 36 with a Sentencing
Guidelines range of 324 to 405 months if Petitioner was held to be
a career offender, or 292 to 365 months if he was not held to be a
The Government agreed to recommend a sentence
within the determined Guidelines range.
Petitioner accepted this
Petitioner testified that he had been told about co-defendant
Jahvin Williams’s plea agreement calling for a 188 month sentence
and assumed that he would receive the same sentence.
Petitioner did not testify regarding any offer made to him of a plea
agreement calling for a 188 month sentence.
In fact, co-defendant Williams was sentenced on April 28, 2009,
to 188 months, the low end of his Guidelines range for Offense Level
35 and Criminal History Category II. [ECF No. 143].
plea agreement provided for a higher Offense Level than was called
for in the second offer to Petitioner.
Petitioner testified that he was not informed of the first
(November 14, 2008) offer until June 1, 2009, the first day of trial.
However, trial counsel testified that the offer was first
communicated to Petitioner no later than December 24, 2008.
Court finds trial counsel credible.
For acceptance of responsibility.
In any event, Petitioner has not shown that he has suffered any
prejudice by virtue of some uncommunicated offer.
See Williams v.
State, 605 A.2d 103, 110 (Md. 1992)(“In any case, the attempt is to
determine whether, but for the deficient performance by counsel,
there is a substantial possibility that the defendant would have
accepted the plea agreement.”).
Petitioner does not claim that he
would have accepted the first offer, calling for a sentence of no
less than 262 months.
In fact, he rejected the second offer made
May 5, 2009, that provided for a guaranteed sentence of 262 months.
The second offer (May 5, 2009) was discussed with Petitioner
on or about May 15, 2009.
Petitioner then said he would accept it
only if counsel could not get the Government to agree to a 17-year
The Government would not agree to this.
On or about May
19, 2009, Petitioner told counsel, in a telephone conversation that
he would not accept the second offer.
Trial commenced with jury selection on June 1, 2009.
jury was selected, Petitioner decided to plead guilty and was
presented with the third (June 1, 2009) offer, which he accepted.
In sum, the Court finds that there never was an offer to
Petitioner for a plea agreement calling for a 188 month sentence.
Hence, trial counsel did not fail to communicate any such offer.
Acceptance of Guilty Plea
Petitioner contends that he was denied the effective assistance
of counsel in regard to his guilty plea, rendering the plea
This contention was raised and resolved on
Petitioner’s direct appeal.
In its decision affirming Judge Quarles, United States v. Brown,
435 Fed. Appx 182 (4th Cir. 2011), the United States Court of Appeals
for the Fourth Circuit addressed Petitioner’s contention that his
guilty plea was not voluntary and that Judge Quarles erred by denying
him the ability to withdraw his plea.
The Fourth Circuit stated:
Brown argues that the district court
abused its discretion in denying his motion to
withdraw his guilty plea, based in part on
assertion that his first appointed counsel
on [his ineffective
assistance claim], [Brown] must demonstrate (1)
that his counsel's performance fell below an
objective standard of reasonableness and (2)
that there was a reasonable probability that,
but for counsel's error, he would not have
pleaded guilty and would have insisted on going
We have thoroughly reviewed the
record and conclude that the district court did
not abuse its discretion in denying Brown's
motion to withdraw his guilty plea.
Id. at 183 (internal citations omitted)(quoting United States v.
Bowman, 348 F.3d 408, 416 (4th Cir. 2003).
The Court further notes that were the issue not conclusively
resolved by the direct appeal, it would find that Petitioner has not
established ineffective assistance of counsel in regard to his guilty
Petitioner has shown nothing to establish that any effort by
trial counsel, through investigation or otherwise, would have
resulted in any better plea agreement offer or would have caused
Petitioner to reject the offer and obtain any better result at trial.
Career Offender Finding
In sentencing, Judge Quarles held that Petitioner was a career
offender, increasing his Criminal History category from V to VI.
Petitioner contends that this was error by virtue of the decision
in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011).
even if Judge Quarles had committed error in this regard, the issue
cannot be raised by the instant § 2255 motion.
As stated in United States v. Foote, 784 F.3d 931 (4th Cir.
2015), cert. denied, 135 S. Ct. 2850 (2015):
Wesley Devon Foote (“Appellant”) appeals
the district court's denial of his petition for
collateral relief filed pursuant to 28 U.S.C.
§ 2255. The district court concluded that
Appellant's petition, which was based on the
argument that his career offender designation
was later nullified under our decision in United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011)
(en banc), does not present a claim that is
cognizable on collateral review.
The language of § 2255 makes clear that not
every alleged sentencing error can be corrected
on collateral review. The Supreme Court has
instructed that only those errors presenting a
“fundamental defect which inherently results in
a complete miscarriage of justice” are
designation meets this high bar. Neither
Appellant's federal offense of conviction nor
his state convictions qualifying him as a career
offender have been vacated, he was sentenced
under an advisory sentencing scheme, and we are
hesitant to undermine the judicial system's
interest in finality to classify a Sentencing
Guidelines error as a fundamental defect.
Therefore, we affirm the district court.
Id. at 932 (internal citations omitted)(quoting Davis v. United
States, 417 U.S. 333, 346 (1974)).
Moreover, of course, Petitioner’s sentencing counsel cannot be
faulted for not anticipating in 2009 an appellate decision rendered
more than two years later.
Finally, in regard to career offender status, the Court is not
now deciding whether Petitioner was a career offender or whether he
would be foreclosed from contesting his career offender status in
the context of his pending motion under 18 U.S.C. § 3582(c).7
Amount of Heroin
Petitioner asserts that his attorneys were ineffective for
failing to represent him adequately in regard to Judge Quarles’
ECF No. 386.
finding that, for Sentencing Guidelines purposes, 30 kilograms of
heroin was attributable to him.
This contention is made in regard
to the voluntariness of his guilty plea when he was represented by
trial counsel and in regard to his representation at sentencing when
he was represented by Mr. Bardos.
As discussed above, the Fourth Circuit has resolved the
contention that Petitioner was not provided adequate representation
in regard to his guilty plea.
At the motions hearing, Petitioner stated that he had been
involved in the charged drug conspiracy for about a three-week period
from December 2005 to sometime in January 2006, and that he thought
that he would only be sentenced based on what he did in that limited
However, the June 1, 2009 plea agreement, [ECF No.
309-1], which trial counsel read and explained to Petitioner before
Petitioner signed it, included a Statement of Facts that stipulated
to the attribution to him of 30 kilograms or more of heroin.
Moreover, in the hearing at which Judge Quarles accepted
Petitioner’s guilty plea, the following occurred:
Your Honor, the facts are as
Commencing in or about 2004 and continuing
until about July of 2008; the Defendant
conspired with a number of other individuals to
distribute and possess with intent to
distribute heroin in and around the area of the
Westport section of Baltimore City, Maryland.
The Defendant was a street lieutenant for
the organization, and sold heroin under the
brand name Dynasty. At various times during
the period of the conspiracy, the Defendant was
observed by law enforcement in and around the street
shop controlling the distribution of heroin by
street workers in the Westport section of Baltimore
THE COURT: Mr. Brown, did you hear what Mr. Wallner
Did he tell me the truth?
June 1, 2009 Excerpt II Transcript, [ECF No. 304-5] at 23-24.
In regard to sentencing, Petitioner’s sentencing counsel did
not contest the 30 kilogram attribution.
In Petitioner’s Sentencing
Memorandum [ECF No. 251], Petitioner’s counsel stated that
Petitioner had agreed to the attribution to him of 30 kilograms of
Id. at 2.
There was no contention that the attribution of
30 kilograms was excessive.
At sentencing Petitioner’s counsel stated that the only issue
in regard to the Presentence Investigation Report pertained to
Criminal History – not the Offense Level determination based upon
attribution of 30 kilograms of heroin.
July 29, 2010 Sentencing
Transcript, [ECF No. 277] at 20.
The Court does not find that Petitioner was denied the effective
assistance of counsel with regard to Judge Quarles’ finding that 30
kilograms of heroin were attributable to him for purpose of U.S.S.G.
For the foregoing reasons, Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence [ECF Nos. 299 & 300] is DENIED.
SO ORDERED, this Wednesday, January 18, 2017.
Marvin J. Garbis
United States District Judge
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