Brown v. State of Nebraska
MEMORANDUM AND ORDER - the Petitioner Terron Brown's Petition Under 28 U.S.C. § 2254 For a Writ of Habeas Corpus 1 is dismissed with prejudice. A separate judgment will be entered in accordance with this Memorandum and Order on Petition under 28 U.S.C. § 2254 for a Writ of HabeasCorpus. Ordered by Senior Judge Warren K. Urbom. (Copy mailed/e-mailed to pro se party)(JAE)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STATE OF NEBRASKA,
AND ORDER ON PETITION
UNDER 28 U.S.C. § 2254 FOR A
WRIT OF HABEAS CORPUS
This matter is before me on the Petitioner Terron Brown’s (“Brown”) Petition
Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (“Petition”). (Filing No. 1.)
After the denial of its Motion for Summary Judgment (filing no. 20), the State of
Nebraska (the “State” or “Respondent”) filed an Answer by Respondent (filing no.
22), an Initial Brief by Respondent (filing no. 23), a Reply Brief (filing no. 30), and
relevant State Court Records1 (filing nos. 21, 25, and 29). Brown filed a “Response
brief to State of Nebraska’s motion to dismiss Petitioner’s 28 U.S.C. § 2254 Writ of
Habeas Corpus.” (Filing No. 28.) I, therefore, deem this matter fully submitted.
Brown’s petition (filing no. 1), liberally construed, alleges that he is entitled
to a writ of habeas corpus because:
he was denied due process of law in violation of the
Fourteenth Amendment because the prosecution
violated the terms of its plea agreement by appealing
Brown’s sentence after agreeing not to comment on
Respondent previously filed State Court Records in support of its Motion for
Summary Judgment. (Filing Nos. 13 and 17.) The court also considers these records
at this stage of the proceedings.
he was denied the effective assistance of counsel in
violation of the Sixth Amendment because his
counsel (a) failed to immediately object to the
prosecution’s appeal of Brown’s sentence because it
violated the plea agreement and the issue was not
preserved for review; or (b) incorrectly informed
Brown that the prosecution would not be allowed to
comment on Brown’s sentence if he accepted the
plea bargain and failed to state all of the terms of the
plea agreement on the record.
(Filing No. 11 at CM/ECF pp. 1-2.)
Brown’s Conviction and Sentence
On June 10, 2005, Brown pleaded guilty to one count of second degree murder
in the Douglas County, Nebraska District Court. (Filing No. 17-1, Attach. 1, at
CM/ECF p. 22.) The Douglas County District Court thereafter sentenced Brown to
a prison term of 30 to 40 years, to run concurrently with Brown’s 20-year federal
prison sentence. (Id. at CM/ECF p. 23.) The State of Nebraska thereafter appealed,
arguing that the sentence imposed was excessively lenient. (Filing no. 17-3, Attach.
3, at CM/ECF p. 2.) The Nebraska Court of Appeals agreed with the State of
Nebraska. On September 19, 2006, the Nebraska Court of Appeals affirmed Brown’s
sentence of 30-40 years’ imprisonment, but modified the sentence to require that
Brown’s state prison sentence run consecutive, rather than concurrent, to Brown’s
federal sentence. (Id. at CM/ECF p. 7.) In accordance with this modification, on
August 11, 2010, the Douglas County District Court entered an “Amended
Sentencing Order” sentencing Brown to a prison term of 30 to 40 years, to run
consecutively with Brown’s 20-year federal prison sentence.
Brown’s Post Conviction Proceedings
On June 11, 2007, Brown filed a verified motion for post-conviction relief in
the Douglas County District Court (the “Post Conviction Motion”). (Filing No. 13-1,
Attach. 1, at CM/ECF pp. 13-14.) The Douglas County District Court appointed
counsel and allowed the matter to proceed for nearly three years, during which
extensive discovery (including depositions) occurred. On January 25, 2010, the
Douglas County District Court reversed its earlier opinion appointing counsel and
dismissed the Post Conviction Motion. (Id. at CM/ECF pp. 24-25.) In dismissing the
Post Conviction Motion, the Douglas County District Court cited only Nebraska law
and determined that it lacked jurisdiction because Brown was “neither physically in
Nebraska nor serving a Nebraska sentence.” (Id. at CM/ECF p. 24.) Brown appealed
the denial of post-conviction relief, and the Nebraska Court of Appeals dismissed the
appeal on March 30, 2010. (Filing No. 13-2, Attach. 2, at CM/ECF p. 2.) Brown
sought further review in the Nebraska Supreme Court, which denied relief to Brown
on May 5, 2010. (Id.)
Brown filed the petition in this matter on June 21, 2010. (Filing No. 1.) The
respondent thereafter filed its Motion for Summary Judgment, arguing that the
petition should be dismissed because Brown is not in “state custody,” as required by
28 U.S.C § 2254. (Filing No. 15.) This court denied the Motion for Summary
Judgment. (Filing No. 20.) The parties thereafter filed briefs on the merits of the
petition and this matter is therefore deemed fully submitted.
“Although the procedural bar issue should ordinarily be resolved first, judicial
economy sometimes dictates reaching the merits if the merits are easily resolvable
against a petitioner while the procedural bar issues are complicated.” Barrett v.
Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999) (citing Lambrix v. Singletary, 520 U.S.
518 (1997)); see also Winfield v. Roper, 460 F.3d 1026, 1038 (8th Cir. 2006) (finding
that the record before the court, which included the original transcripts, the record of
the state court’s evidentiary hearing, the petitioner’s habeas petition, and numerous
briefs, presented adequate information upon which to base a decision on the merits
of the petitioner’s claim).
The Respondent argues that Brown’s petition is barred by the applicable statute
of limitations and that at least one of his claims is unexhausted. The court finds that
these procedural issues are complicated, while the merits of Brown’s claims are not.
As such, the court addresses both of Brown’s claims on the merits.
Brown argues that the prosecution violated the terms of his plea agreement in
violation of his Fourteenth Amendment due process rights. (Filing No. 1.) Brown’s
argument is based on his assertion that the State agreed to remain silent at sentencing,
a term which Brown claims the State violated by filing an appeal relating to the
leniency of his sentence. (Id.) The Respondent argues that it did not agree to remain
silent at sentencing, but even if it did, it did not violate that agreement by appealing.
As set forth below, the court agrees with the Respondent.
The Supreme Court has long held “that when a plea rests in any significant
degree on a promise or agreement of the prosecutor, so that it can be said to be part
of the inducement or consideration, such promise must be fulfilled.” Santobello v.
New York, 404 U.S. 257, 262 (1971). Put simply, “the State must honor its plea
agreements.” Colvin v. Taylor, 324 F.3d 583, 587 (8th Cir. 2003). However, in the
context of plea agreements, the Supreme Court has noted that courts should not
“imply as a matter of law a term which the parties themselves did not agree upon.”
U.S. v. Benchimol, 471 U.S. 453, 456 (1985) (finding that government did not violate
the plea agreement where it made the agreed-upon sentencing recommendation under
Federal Rule of Criminal Procedure 11 even though it failed to make the
The Nebraska Court of Appeals has addressed a nearly-identical situation as
Brown’s. See State v. Thompson, 735 N.W.2d 818, 818 (Neb. Ct. App. 2007). In
Thompson, the defendant argued that, because the State agreed to remain silent at
sentencing, it also waived its right to appeal the defendant’s sentence as “excessively
lenient.” Id. at 822. The Nebraska Court of Appeals determined that the State indeed
“live[d] up to its agreement to ‘remain silent’ at the time of sentencing.” Id. at 824.
Summarizing, and relying on, Santobello, Benchimol, and other federal circuit law,
the Nebraska Court of Appeals determined:
Given the general principle that courts are not to rewrite contracts to
include what the parties did not, we find that what the plea agreement
between Thompson and the State did not say is of the greatest import in
resolving this issue when we note the general principle that the waiver
of the right to appeal must be express and
unambiguous. . . . Accordingly, in the instant case, agreeing to “remain
silent at sentencing” does not clearly and unambiguously give up the
State’s statutory right to seek appellate review.
Id. at 826-27. In light of these general principles, the Nebraska Court of Appeals
In the present case, the very simple and basic plea agreement, albeit oral
but on the record, was not festooned with a waiver of the State’s right
of appellate review. There is such a substantial and longstanding body
of Nebraska jurisprudence according substantial discretion to the
sentencing judge that citation of authority is superfluous. But, if that
discretion is to be unfettered and “unexaminable” discretion, the State’s
waiver of its right of appellate review must actually be part of the
agreement rather than judicially created from a plea agreement that fails
to even mention such a condition. In short, we enforce the agreement
that was made rather than expand it by judicial fiat, and we hold that the
State did not waive its statutory right to appellate review of the trial
Id. at 828.
The Merits of Brown’s Claim One
The parties have submitted State Court Records including the depositions of
the two prosecutors and both of Brown’s trial attorneys involved in negotiating the
plea agreement, and the transcripts of the plea and sentencing hearings. These
documents clearly show that there was no agreement that the prosecution remain
silent at sentencing. However, even if there was such an agreement, the State fulfilled
its promises and there was no waiver of the State’s right to appeal.
The original information charged Brown with four counts, including firstdegree murder, use of a deadly weapon to commit a felony, and two first-degree
assault charges. (Filing No. 17-1, Attach. 1, at CM/ECF p. 13.) After the plea
negotiations, Brown pleaded no contest to one charge, second-degree murder, and
the State dismissed all remaining charges. (Filing No. 29-1, Attach. 1, at CM/ECF
pp. 4, 16.) At the plea hearing, the Douglas County District Judge informed Brown
that “the possible penalty” on the single, second-degree murder conviction was a
minimum sentence of 20 years imprisonment and a maximum sentence of life
imprisonment. (Id. at CM/ECF p. 9.) Brown stated that he understood the penalty.
(Id.) The Douglas County District Judge also confirmed with Brown that no other
promises had been made and that the reduction and dismissal of the charges was the
entire plea agreement. (Id. at CM/ECF pp. 10-11.)
Regarding the plea negotiations between the parties, the lead prosecutor,
Sandra Denton (“Denton”), testified as follows:
What do you remember talking to [Brown’s] counsel about?
I remember [Brown’s counsel] being very interested in having the
time run concurrent with [Brown’s] federal time and we absolutely
would not agree to that. And he wanted that a part of the plea
agreement. I remember that specifically.
(Filing No. 29-2, Attach. 2, at CM/ECF p. 11.) Denton also testified that she handled
the sentencing hearing alone, and that she “did not make any argument” at Brown’s
sentencing hearing. (Id. at CM/ECF pp. 14-15.) Regarding the issue of standing
mute at sentencing, Denton testified:
Ms. Denton, did you imply to [Brown’s counsel] that if they
accepted the plea agreement that you – that the County Attorney’s
Office would leave the sentencing to the purview – leave the sentencing
to the purview of the sentencing judge?
Have you ever made, as part of your plea agreement, that you
would stand mute at sentencing?
It wasn’t that we – it was my understanding from the office that
we weren’t to agree to stand mute. It was that we would agree not to
recommend any specific type of sentence and that would be what I
would have negotiated with defense counsel. So I have done that
before. It wasn’t a part of my regular practice but I certainly have
agreed to not recommend any particular sentence.
And when you made that recommendation, would you always put
it on the record or would it just understood?
Oh, no, that would go on the record.
(Id. at CM/ECF pp. 18-20.) In short, Denton testified that, as part of the plea
agreement, the State did not promise to stand silent at sentencing, or to recommend
any sentence, including a concurrent sentence. (Id. at CM/ECF pp. 24-25.) However,
Denton testified that it was the “general policy” of the Douglas County Attorney’s
Office that sentencing “was within the purview of the judge,” and she rarely
commented at sentencing. (Id. at CM/ECF pp. 6-7, 19.) Denton’s co-counsel,
Thomas McKenney’s, testimony was generally the same with regard to the plea
negotiations and agreement. (Filing No. 29-3, Attach. 3, at CM/ECF pp. 10-17.)
The deposition testimony of Brown’s attorneys is similar. In particular,
Brown’s trial attorney, Thomas Olsen (“Olsen”) testified that it was his understanding
that the State planned to leave the issues of sentencing “to the Judge” and “whatever
the Judge decides, he decides.” (Filing No. 29-5, Attach. 5, at CM/ECF p. 12.) In
short, “when it came to sentencing, it was just we’re not going to – we’re not going
to say anything. And I guess it was taken at face value that that’s what was going to
happen, and that’s what did happen.” (Id. at CM/ECF p. 25.) Olsen summarized the
plea agreement as follows:
I guess at that point in time, I was confident that the plea negotiations
and the deal that was reached was just that. That he was pleading to
second degree, that the remaining charges would be dismissed, and that
the State was not going to have any specific comment with respect to
sentencing and that’s what it was. But the gist of the plea agreement
was obviously the reduction in the charge.
(Id. at CM/ECF p. 41.) Olsen’s co-counsel, Anthony Troia (“Troia”) likewise
testified at his deposition that:
I don’t specifically remember what was discussed, the sentencing, other
than reviewing the matter with Mr. Olsen. And it was his indication that
Miss Denton or Mr. McKenney said whatever the Judge does, he does,
as far as that goes. So in other words, I interpreted it to mean that they
weren’t going to say anything at the time of sentencing, which I believe
(Filing No. 29-6, Attach. 6, at CM/ECF p. 11.) Troia further testified that “standing
mute at sentencing” was the State’s “normal practice.” (Id. at CM/ECF p. 12.)
The deposition transcripts, along with the transcript of the plea hearing, show
that there was no specific agreement for the State to remain silent at Brown’s
sentencing. (Filing No. 29-1, Attach. 1, at CM/ECF pp. 1-18.) Regardless of whether
an agreement existed, the State did indeed remain silent at sentencing. (Filing No.
21-1, Attach. 1, at CM/ECF pp. 1-9.) In the entire sentencing hearing, the State said
two sentences, “Yes, Your Honor. Rolisha Easter, who is the mother of the
deceased.” (Id. at CM/ECF p. 4.) Thus, aside from the introduction of the victim’s
mother, the State was silent. In addition, the State’s right to appeal was not discussed
as part of the plea negotiations, and a careful review of the depositions, and the plea
and sentencing hearing transcripts, shows that the State did not waive its statutory
right to appeal Brown’s sentence.
In light of the law and the facts, I find that there was no agreement for the State
to remain silent at sentencing. However, even if such an agreement existed, the State
fulfilled its part of the bargain. Further, to the extent such an agreement existed,
under federal law and Nebraska law, that agreement did not waive the State’s
statutory right to appeal Brown’s sentence as excessively lenient. Thus, while the
State must honor its plea agreements, this court will abide by the Supreme Court’s
statement and will not “imply as a matter of law a term which the parties themselves
did not agree upon.” Benchimol, 471 U.S. at 456. As such, Brown’s Claim One is
dismissed with prejudice.
Brown’s arguments in his second claim are that his trial counsel was ineffective
for failing to object to the State’s appeal of his sentence as violating the plea
agreement and for incorrectly informing him about the plea bargain. I find both
Ineffective assistance of counsel claims are reviewed under the two-pronged
standard of Strickland v. Washington, 466 U.S. 668, 694 (1984). Strickland requires
that the petitioner demonstrate both that his counsel’s performance was deficient, and
that such deficient performance prejudiced the petitioner’s defense. Id. at 687; see
also Bryson v. United States, 268 F.3d 560 (8th Cir. 2001); Williamson v. Jones, 936
F.2d 1000, 1004 (8th Cir. 1991).
The first prong of the Strickland test requires that the petitioner demonstrate
that his attorney failed to provide reasonably effective assistance. Strickland, 466
U.S. at 687-88. In conducting such a review the courts “indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. The second prong requires the petitioner to demonstrate “a
reasonable probability that but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694; see also Hubbeling v. United
States, 288 F.3d 363, 365 (8th Cir. 2002). A court need not address the
reasonableness of the attorney’s skills and diligence if the movant cannot prove
prejudice under the second prong of this test. United States v. Apfel, 97 F.3d 1074,
1076 (8th Cir. 1996) (quoting Cheek v. United States, 858 F.2d 1330, 1336 (8th Cir.
1988)). Further, as set forth in Strickland, counsel’s “strategic choices made after
thorough investigation are virtually unchallengeable” in a later habeas corpus action.
466 U.S. at 689.
The Merits of Brown’s Claim Two
As set forth above, the record shows that there was no agreement that the State
would remain silent at Brown’s sentencing. However, even if such an agreement
existed, the State fulfilled its agreement. At no time did the State agree to waive its
statutory right to appeal Brown’s sentence as excessively lenient. Because Brown’s
Claim One is not meritorious, his counsel cannot be ineffective for failing to object
on those non-meritorious grounds or for failing to inform him of an agreement that
did not exist. Further, Brown could not have been prejudiced by such conduct. Kitt
v. Clarke, 931 F.2d 1246, 1250 (8th Cir. 1991) (citing Meyer v. Sargent, 854 F.2d
1110, 1115-16 (8th Cir. 1988)). In light of the court’s findings on Claim One,
Brown’s Claim Two will be dismissed with prejudice.
IT IS THEREFORE ORDERED that:
the Petitioner Terron Brown’s Petition Under 28 U.S.C. § 2254 For a
Writ of Habeas Corpus (filing no. 1) is dismissed with prejudice.
a separate judgment will be entered in accordance with this
Memorandum and Order on Petition under 28 U.S.C. § 2254 for a Writ of Habeas
Dated August 31, 2011.
BY THE COURT
s/ Warren K. Urbom
United States Senior District Judge
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