Brant, Robin v. USA
Filing
10
OPINION AND ORDER denying 8 Supplemental Motion to Vacate Sentence per 28 USC 2255; denying 1 Motion to Vacate Sentence per 28 USC 2255 Signed by District Judge William M. Conley on 11/20/14. (jat) (Main Document 10 replaced on 11/20/2014) (voc).
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ROBIN BRANT,
Petitioner,
OPINION AND ORDER
v.
10-cr-87-wmc
12-cv-42-wmc
UNITED STATES OF AMERICA,
Respondent.
Robin Brant has filed a motion to vacate, set aside or correct her sentence
pursuant to 28 U.S.C. ' 2255. Brant contends that she was denied effective assistance of
counsel at her guilty plea and appeal in United States v. Brant, Case No. 10-cr-87-wmc. In
response, the government argues that the motion is without merit, and Brant has since
filed a supplemental version of her motion in an attempt to press a new claim concerning
the validity of her conviction.
For reasons set forth briefly below, both of Brant’s
motions will be denied.
BACKGROUND
On April 24, 2010, Brant and her co-defendant, Tiran Jenkins, robbed a local
bank at gunpoint. During the robbery, Jenkins threatened and pistol-whipped a teller
with a loaded gun, knocking her to the ground. Meanwhile, Brant, carrying a toy gun,
restrained other bank employees with plastic zip ties. Jenkins and Brant then fled with
approximately $48,000.00. Officers quickly apprehended the pair after they triggered a
dye-pack, which exploded in their stolen getaway car. Officers recovered the money, the
loaded weapon used by Jenkins to commit the offense, and one of the teller’s purses.
Also recovered from the stolen vehicle were disguises worn by the defendants and the toy
gun used by Brant during the robbery.
Within days of the offense, a federal grand jury in this district returned an
indictment against both Jenkins and Brant, charging them with armed bank robbery
(count one) and use of a firearm during the commission of a crime of violence (count
two) in violation of 18 U.S.C. § 924(c). Jenkins was also charged with possessing a
firearm as a felon (count three). On July 8, 2010, both Jenkins and Brant pled guilty to
all of the counts against them.
Brant was sentenced to serve 36 months in prison on the armed robbery count
followed by a consecutive term of 84 months for using a firearm to commit the offense
for a total of 120 months’ imprisonment.
Jenkins was sentenced to a total of 264
months in prison.
On direct appeal, Brant’s appointed counsel filed a brief and a motion to withdraw
pursuant to Anders v. California, 386 U.S. 738, 744 (1967), asserting that there were no
non-frivolous grounds for appeal.
In granting counsel’s motion and dismissing her
appeal, the Seventh Circuit considered and rejected Brant’s claim that she was not
competent to be sentenced. The court noted that Brant had been diagnosed with posttraumatic stress disorder, but that there was “no indication of major mental illness” and
nothing in the record showing that the disorder prevented Brant from understanding the
sentencing proceeding or interfering with her ability to consult with her counsel. United
States v. Jenkins & Brant, Nos. 10-3089 & 3128, slip op. at 2-3 (7th Cir. March 30, 2011)
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(per curium). The Seventh Circuit also rejected a proposed challenge to Brant’s prison
term as “frivolous” and dismissed her appeal. Id. at 3.
Brant now seeks relief from her conviction and sentence pursuant to § 2255,
arguing that she was denied effective assistance of counsel in connection with her guilty
plea and appeal.
OPINION
A motion for relief under 28 U.S.C. ' 2255 invokes “an extraordinary remedy
because it asks the district court essentially to reopen the criminal process to a person
who already has had an opportunity for full process.” Almonacid v. United States, 476 F.3d
518, 520 (7th Cir. 2007) (citing Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir.
2006)). As such, a motion under § 2255 cannot be used to relitigate matters that were
raised on direct appeal.
Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007).
Likewise, claims omitted on direct appeal may be considered on collateral review only if
the petitioner can show good cause for failing to raise the issue previously and actual
prejudice based on the alleged error. See, e.g., Fuller v. United States, 398 F.3d 644, 648
(7th Cir. 2005). Relief under § 2255 is appropriate only where a defendant establishes
“an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect
which inherently results in a complete miscarriage of justice.” Harris v. United States, 366
F.3d 593, 594 (7th Cir. 2004) (quoting Borre v. United States, 940 F.2d 215, 217 (7th
Cir. 1991)). Brant has not done this with respect to any of her claims of ineffective
assistance.
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I.
Guilty Plea
Claims for ineffective assistance of defense counsel are analyzed under the
standard articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984). To prevail under the Strickland standard, a defendant must demonstrate both (1)
constitutionally deficient performance by counsel, resulting in (2) actual prejudice. See
Williams v. Taylor, 529 U.S. 390, 390-91 (2000).
“Unless a defendant makes both
showings, it cannot be said that the conviction . . . resulted from a breakdown in the
adversary process that rendered the result unreliable.” Strickland, 466 U.S. at 687.
Brant contends that her counsel was deficient in connection with her guilty plea in
two respects: (1) he failed to challenge her competency to enter a plea due to posttraumatic stress disorder; and (2) he allowed her to plead guilty to count two, alleging a
violation of 18 U.S.C. § 924(c), despite Jenkins being the one who brandished a firearm
during the commission of the offense.
Brant’s first claim is without merit because there is no evidence showing that she
was incompetent to plead guilty. As the Seventh Circuit noted on direct appeal, the
psychologist who diagnosed Brant with post-traumatic stress disorder noted no indication
of major mental illness and the record does not disclose any. In that regard, Brant does
not identify any facts in the record that create doubt about her ability to appreciate the
proceedings or to assist in her own defense. See United States v. Savage, 505 F.3d 754,
758 (7th Cir. 2007). During her re-arraignment, Brant gave no indication that she was
unable to understand the charges against her or the consequences of her plea. (Plea Tr.
(dkt. #82).) On the contrary, the Seventh Circuit found:
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Although the psychologist diagnosed Brant with post-traumatic stress
disorder, she also concluded that there was “no indication of major mental
illness.” Moreover, nothing in the record demonstrates that Brant’s
disorder prevented her from understanding the sentencing proceeding or
interfaced with her ability to consult with her attorney.
Jenkins, slip. op. at 3. In this collateral attack, Brant offers nothing more showing that
she was either incompetent to proceed or that her counsel was somehow deficient for
failing to raise this issue at her guilty plea proceeding.
Brant’s ineffective-assistance claim concerning count two is likewise without merit.
As the government notes, it is well established that a conviction pursuant to 18 U.S.C.
§ 924(c) may be predicated on a theory of co-conspirator liability. See Pinkerton v. United
States, 328 U.S. 640 (1946). As a result, the government was not required to prove that
Brant personally brandished a firearm during the offense. See United States v. Haynes, 582
F.3d 686, 707 (7th Cir. 2009). It follows that Brant’s defense counsel was not deficient
for allowing her to plead guilty to count two.
II.
Appeal
Brant also contends that she was denied effective assistance of counsel because her
appointed attorney did not keep her apprised as to the status of her appeal. As the
government notes, the brief submitted by appellate counsel specifically represents to the
Seventh Circuit that: (1) he consulted with Brant; and (2) after a thoughtful discussion,
she indicated that “while she takes issue with the length of her sentence, she does not
wish to withdraw her plea.” Moreover, Brant does not dispute that she consulted with
her attorney “on a couple of occasions” in connection the appeal nor that she was given a
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copy of the appellate brief, which contained counsel’s Anders motion.
Even assuming appellate counsel did not advise Brant of the status of her appeal
after the Anders brief was filed, Brant must still establish both constitutionally deficient
performance and actual prejudice. See Smith v. Murray, 477 U.S. 527, 535-36 (1986)
(applying Strickland to a claim of ineffective assistance of counsel on appeal).
To
establish that appellate counsel’s performance was deficient in the context of an appeal,
the defendant must show that his attorney was objectively unreasonable in failing to find
arguable issues to appeal -- that is, that counsel unreasonably failed to discover nonfrivolous issues and raise them.
Smith v. Robbins, 528 U.S. 259, 285 (2000). If the
defendant succeeds in such a showing, then she must establish actual prejudice by
demonstrating a “reasonable probability” that, but for her counsel’s deficient
performance, “[s]he would have prevailed on [her] appeal.” Id.
Here, Brant is unable to identify a non-frivolous issue that her appellate attorney
failed to present, much less that this was the result of counsel’s failure to keep her
apprised of the status of the appeal after filing the Anders brief. Therefore, at minimum,
the fact that the Seventh Circuit agreed with appellate counsel on the papers, and
dismissed the case, means Brant cannot demonstrate she would have prevailed in that
proceeding but for her appellate attorney’s deficient performance. Absent a showing that
her appellate attorney was deficient or that she was actually prejudiced as a result, Brant
fails to make a valid ineffective-assistance claim or to show that she is entitled to any
relief on this issue.
III.
Supplemental Motion for Relief
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As noted above, Brant has also filed a supplemental motion for relief under 28
U.S.C. § 2255, challenging the mandatory minimum sentence she received in count two
for use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Arguing
that this sentence was based on an improper judicial fact finding that Jenkins
“brandished” a firearm, she argues, therefore, that this sentence must be vacated
pursuant to Alleyne v. United States, — U.S. —, 133 S. Ct. 2151 (2013), which held that
“any fact that increases a mandatory minimum sentence is an ‘element’ that must be
submitted to the jury.” Id. at 2155.
Unfortunately, Brant is not entitled to relief under Alleyne for two independent
reasons. First, her conviction became final in 2011. The Supreme Court’s 2013 decision
in Alleyne, which is based on the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000),
does not benefit Brant because “decisions in the Apprendi sequence do not apply
retroactively.” Wilson v. United States, 414 F.3d 829, 831 (7th Cir. 2005); see also Simpson
v. United States, 721 F.3d 875, 876 (7th Cir. 2013); Curtis v. United States, 294 F.3d 841,
842 (7th Cir. 2002); United States v. Martin, — F. App’x —, 2014 WL 1801715 (7th Cir.
May 7, 2014).
Second, by pleading guilty, Brant waived the right to have a jury make fact findings
in her case.
See United States v. Warneke, 310 F.3d 542, 550 (7th Cir. 2002) (“An
admission is even better than a jury’s finding beyond a reasonable doubt; it removes all
contest from the case.”); United States v. Collins, 272 F.3d 984, 987-88 (7th Cir. 2001)
(noting that defendant waived right to jury determination of drug quantity by stipulating
to amount of crack cocaine) ); see also United States v. Yancy, 725 F.3d 596, 601-02 (6th
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Cir. 2013) (explaining that Alleyne does not alter rule that, for statutory enhancements,
defendant’s guilty plea and admissions during plea colloquy relieve government of burden
of proving facts to jury beyond a reasonable doubt). Accordingly, the holding in Alleyne
does not apply to Brant.
IV.
Certificate of Appealability
For reasons set forth above, Brant has simply not shown that she was denied
effective assistance of counsel nor that she is otherwise entitled to relief from her
conviction and sentence under 28 U.S.C. § 2255. Absent a valid claim for relief, her
§ 2255 motion must be denied. Under Rule 11 of the Rules Governing Section 2255
Proceedings for the United States District Courts, however, the court must also issue or
deny a certificate of appealability when entering a final order adverse to the applicant. A
certificate of appealability will not issue unless the applicant makes “a substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which requires
an applicant to demonstrate “that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Tennard v. Dretke, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Under the controlling standard, this requires an applicant to show “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.’” Miller-El, 537 U.S. at 336.
Where denial of relief is based on procedural grounds, the applicant must show not only
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that “jurists of reason would find it debatable whether the petition states a valid claim of
the denial of a constitutional right,” but also that they “would find it debatable whether
the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
Although Rule 11 allows the court to direct the parties to submit arguments on
the possible issuance of a certificate of appealability, it is unnecessary to do so in this
instance. For the reasons stated above, the court concludes that no reasonable jurist
would debate whether a different result was required. For this reason, no certificate of
appealability will issue. If Brant wishes, she may still seek a certificate from the court of
appeals under Fed. R. App. 22.
ORDER
IT IS ORDERED:
(1) Robin Brant’s motion for relief from her conviction and sentence under 28 U.S.C.
§ 2255 is DENIED;
(2) the supplemental motion for relief filed by Brant is also DENIED; and
(3) a certificate of appealability is DENIED.
Entered this 20th day of November, 2014.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
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