Brooks v. United States, Case No.: 3:12-cv-1266-J-32JRK
| Decision Date | 08 January 2016 |
| Docket Number | Case No.: 3:12-cv-1266-J-32JRK,Case No.: 3:09-cr-76-J-32JRK |
| Parties | KEITH LARON BROOKS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
This case is before the Court on Petitioner Keith Laron Brooks's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 1).1 The United States filed a response opposing relief (Doc. 17), and Petitioner filed both a reply (Doc. 21) and a supplemental reply (Doc. 37). Pursuant to Rule 8(a) of the Rules Governing Section 2255 Proceedings, the Court has determined that an evidentiary hearing is not necessary to decide the petition. See Aron v. United States, 291 F.3d 708, 714-15 (11th Cir. 2002) (). For the reasons set forth below, Petitioner's motion to vacate is due to be denied.
On January 12, 2009, police officers obtained a warrant to search a mobile home located at 10691 McLaurin Road East in Jacksonville, Florida. The warrant authorized officers to search the residence, the curtilage, and any vehicle parked therein for cocaine and drug paraphernalia. When officers arrived to execute the warrant, they encountered Petitioner on the front porch. The officers told Petitioner to lie down on the ground, but he fled inside the trailer instead, and the police followed. (Crim. Doc. 91 at 71-72). Petitioner headed toward a room in the back of the home, where, during the execution of the warrant, police recovered a handgun, ammunition, drug paraphernalia, mail addressed to Petitioner, and Petitioner's Florida identification card, among other things. Petitioner's mother told officers that Petitioner lived in the back bedroom. (Crim. Doc. 91 at 112). Elsewhere, including in a vehicle parked outside the residence, the police recovered cocaine. Based on these discoveries, the police arrested Petitioner, who also happened to be a convicted felon.
On March 12, 2009, a grand jury indicted Petitioner on one count of possession of cocaine base with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Crim. Doc. 1, Indictment). Petitioner moved to suppress the evidence, in which he raised several challenges to the sufficiency of probable cause, the search warrant, and the scope of the government's search. (Crim. Doc. 18, Motion to Suppress). The Court conducted a suppression hearing (see generally Crim. Doc. 39, Suppression Transcript), after which a United States MagistrateJudge issued a comprehensive Report and Recommendation which recommended that the Court deny the motion (Crim. Doc. 43, Report and Recommendation). Neither Petitioner nor the government objected to the Report, and the Court adopted the Report and Recommendation as its opinion, thereby denying the motion to suppress. (See Crim. Doc. 64, Order Adopting R&R).
Petitioner proceeded to trial, which began on September 14, 2009 (see Crim. Doc. 91, Trial Tr. Vol. I) and ended on September 17, 2009 (see Crim. Doc. 94, Trial Tr. Vol. IV). Both sides introduced testimony from a number of witnesses. Petitioner in particular presented eight witnesses in an effort to show that he was unaware of, and did not possess, either the firearm, the ammunition, or any of the contraband seized at the residence. Petitioner's defense was that he was merely present at the trailer, but in light of the large number of people who regularly or intermittently lived there, the contraband likely belonged to someone else. After extensive deliberations, the jury deadlocked as to the drug possession charge, but convicted Petitioner of possessing a firearm as a convicted felon. (See Crim. Doc. 95, Trial Tr. Vol. V at 18-21). The Court declared a mistrial as to Count One of the Indictment - the drug charge (Trial Tr. Vol. V at 24), the United States moved to dismiss Count One (Crim. Doc. 82, Motion to Dismiss Count One), and the Court granted the motion (Crim. Doc. 86, Order Granting Motion to Dismiss). Accordingly, Petitioner was only adjudgedguilty of possession of a firearm by a convicted felon, for which the Court sentenced him to a term of 200 months in prison. (Crim. Doc. 87, Judgment).2
Petitioner appealed his conviction to the Eleventh Circuit Court of Appeals. See United States v. Brooks, 426 F. App'x 878 (11th Cir. 2011). Petitioner raised five arguments on direct review:
(1) sufficient evidence [did] not support the jury's verdict that he unlawfully possessed a firearm; (2) the district court erred in admitting (a) [a witness's] testimony that Brooks previously possessed a firearm and (b) Brooks's 2003 felony conviction for cocaine distribution, pursuant to Fed. R. Evid. 404(b); (3) the district court abused its discretion in denying his motion to sever his drug count from his firearm count; (4) the district court erred in denying his motion to suppress; and (5) the district court erred in denying his motion to compel the identity of a non-testifying confidential informant ("CI").
Id. at 879-80. The court addressed the first three issues on the merits and rejected each argument. Id. at 880-83. With respect to the denial of the motion to suppress and the motion to compel the identity of the CI, the court held that Petitioner had waived appellate review by not objecting to the Magistrate Judge's recommendation to deny the motions, and therefore it did not reach the merits. Id. at 883. Accordingly, the court affirmed Petitioner's conviction and sentence. Id. at 883-84.
Petitioner moved the Eleventh Circuit for an en banc rehearing, but the court denied that request on August 18, 2011. (See Response at 3). Petitioner did not request certiorari review from the Supreme Court. Therefore, Petitioner's conviction and sentence became final on November 17, 2011, upon the expiration of the 90-dayperiod for seeking certiorari review. Petitioner filed the Motion to Vacate on November 16, 2012, and it is therefore timely under 28 U.S.C. § 2255(f)(1).
In the Motion to Vacate, Petitioner raises fourteen issues or arguments. Those issues are as follows: (a) ineffective assistance of counsel for preventing Petitioner from testifying at trial (Doc. 1 at 6-9); (b) ineffective assistance of counsel for not arguing that the drug charge and the firearm charge were improperly joined (id. at 9-19); (c) ineffective assistance of counsel for not seeking an "expedited ruling" on whether the Court would admit evidence of a prior drug conviction under Federal Rule of Evidence 404(b) (id. at 19-24); (d) ineffective assistance of counsel for not pointing out in closing arguments that Petitioner's fingerprints were not on the firearm (id. at 24-25); (e) ineffective assistance of counsel for not reminding the Court to admonish the jurors not to share notes with each other (id. at 26-28); (f) the district court erred by not providing additional admonishments to the jurors not to share their notes (id. at 28-30); (g) the prosecution erred when it failed to remind the Court to admonish the jurors not to share their notes (id. at 30-31); (h) appellate counsel rendered ineffective assistance by not raising the issue of alleged note-sharing by jurors (id. at 31-33); (i) ineffective assistance of counsel at jury selection for permitting a correctional officer, the spouse of an FBI agent, and the son of a former FBI agent to be empaneled (id. at 33-36); (j) the district court committed error by not removing the three aforementioned jurors, because the three jurors did not affirm that they could be fair and impartial (id. at 36-37); (k) ineffective assistance of counsel for noteliciting testimony from two defense witnesses that they knew the firearm belonged to Petitioner's son rather than Petitioner himself (id. at 37-38); (l) ineffective assistance of counsel for failing to object to the Magistrate Judge's order denying a motion to compel the identity of a confidential informant and for failing to object to the Report and Recommendation on the motion to suppress (id. at 38-40); (m) counsel allowed other "inappropriate" jurors to be selected during voir dire (id. at 40); and (n) counsel made damaging remarks in his opening statement and closing argument (id.).
After having obtained transcripts for his review, Petitioner withdrew his arguments as to issue (d), that counsel was ineffective for not arguing that Petitioner's fingerprints were not on the firearm, and issue (n), that counsel made damaging remarks in the opening statement and closing argument. (Doc. 21, Reply at 13, 41). Accordingly, the Court will not consider these issues further.
"Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding." Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004) (citing McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001)). Claims that are ripe for direct appeal but not raised are procedurally defaulted, and may not be raised for the first time in a motion to vacate under 28 U.S.C. § 2255. Lynn, 365 F.3d at 1234. "This rule generallyapplies to all claims, including constitutional claims." Id. (citing Reed v. Farley, 512 U.S. 339, 354 (1994)).
Three of Petitioner's issues have been procedurally defaulted. Issue (f), that the Court erred by failing to remind the jurors not to share their notes; issue (g), that the prosecution committed error by not reminding the Court to admonish the jurors about sharing their...
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