Brown v. U.S.

• Decision Date: 28 July 2009
• Docket Number: No. 08 Civ. 8804.,No. 04 Cr. 113 (AJP).,08 Civ. 8804.,04 Cr. 113 (AJP).
• Citation: 637 F.Supp.2d 212
• Parties: Willie BROWN, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of New York

637 F.Supp.2d 212

Willie BROWN, Petitioner, v. UNITED STATES of America, Respondent.

No. 08 Civ. 8804.

No. 04 Cr. 113 (AJP).

United States District Court, S.D. New York.

July 28, 2009.

Willie Brown, White Deer, PA, pro se.

Donald Joseph Yannella, III, Donald Yannella P.C., New York, NY, Paul W. Bergrin, Pope, Bergrin and Verdesco, P.A., Newark, NJ, for Petitioner.

Samuel Gates Williamson, Stephen Aaron Miller, U.S. Attorney's Office, New York, NY, for Respondent.

OPINION AND ORDER

ANDREW J. PECK, United States Magistrate Judge:

Pro se petitioner Willie Brown has petitioned under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence of 260 months imprisonment. (See 08 Civ. 8804, Dkt. No. 1: Pet.) Brown asserts that: (1) "Ineffective Counsels' fundamental, prejudicial, gross negligence & Conflictive Cumulative Errors violated [his] rights" (Pet. ¶¶ 12(A)); (2) "Vindictive Prosecut[orial] Misconduct" involving "`spill over'" prejudice rendered "his sentence illegal & unfair" (Pet. ¶ 12(B)); and (3) the incorrect offense level was applied in calculating the sentencing guidelines in Brown's pre-sentence report (Pet. ¶ 12(C)). In a supplement to his petition, Brown also asserts that counsel was ineffective for permitting his sentences to be consecutive rather than concurrent. (04 Cr. 113, Dkt. Nos. 108-09: Brown Rule 15 Motion to Amend Pet.)

The parties have consented to decision of this petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (08 Civ. 8804, Dkt. No. 8.)

For the reasons set for below, Brown's petition is DENIED.

FACTS

On February 5, 2004, Willie Brown was indicted along with two co-defendants. (04 Cr. 113, Dkt. No. 106: Gov't Ltr. Br. at 1.) On February 14, 2006, Brown waived indictment and was charged in a two-count superseding information. (Gov't. Br. at 1; 04 Cr. 113, Dkt. No. 71: 2/14/06 Waiver of Indictment; 04 Cr. 113, Dkt. No. 72:2/14/06 S5 Superseding Information.) Count One charged Brown with distributing and possessing with intent to distribute five kilograms and more of cocaine from 1999 through February 2004; Count Two charged Brown with possessing a firearm in connection with a drug trafficking crime. (S5 Superseding Information.)

Guilty Plea and Sentencing

On February 16, 2006, represented by Donald Yanella, Brown pled guilty before Judge Cote. (04 Cr. 113, Dkt. No. 75:2/16/06 Plea Transcript ["P."].) Brown acknowledged that he understood that he was waiving his rights to a jury trial and related rights. (P. 4-7.) Judge Cote described the specific crimes charged in the indictment, and Brown acknowledged that he understood both charges and the penalties for those charges, including that the five year mandatory minimum for Count Two must follow any sentence for Count One. (P. 8-10.) Brown affirmed that he had discussed the Sentencing Guidelines with his attorney and understood them (P. 10-11), after which the following colloquy occurred:

THE COURT: Now, do you understand that if your attorney or anyone has attempted to predict to you what your sentence will be that their [prediction] could be wrong; do you understand that?

THE DEFENDANT: Yes, your Honor.

THE COURT: No one, not your lawyer, not the government's lawyer, no one can give you any assurance of what your sentence will be because I am going to decide your sentence ... [after] a presentence report [is] prepared.... Do you understand that?

THE DEFENDANT: Yes, your Honor.

THE COURT: .... Even if your sentence is different from what your attorney or anyone else has told you it might be, even if it's different from what's calculated in an agreement you have with the government you are still going to be bound by your plea of guilty and cannot withdraw your plea of guilty. Do you understand that?

THE DEFENDANT: Yes, your Honor.

THE COURT: Has anyone threatened you[] or influenced or forced you in any way to plead guilty?

THE DEFENDANT: No your Honor.

(P. 11-12.) Brown stated that he had read the plea agreement, that his "lawyer went over it with" him, and that he understood it. (P. 12-13.) Brown acknowledged that in signing the plea agreement he agreed not to "appeal or litigate or challenge [his] sentence" as long as the Court did not sentence him "to more than 387 months in prison." (P. 13-14.) The following was the lengthy colloquy on the sentencing appeal waiver:

THE COURT: Do you understand that in this document you and the government have agreed that the sentencing guidelines range is 262 to 327 months imprisonment before we get to the five year sentence on the firearms count? Do you understand that that's what you've agreed to?

THE DEFENDANT: Yes, ma'am.

THE COURT: And you've also agreed that that five year sentence on the firearms count is to follow any sentencing guidelines range as a result of the cocaine charge; do you understand that?

THE DEFENDANT: Yes.

THE COURT: And you understand that in signing this you have agreed that a sentence within that range to be followed by the five year sentence on the firearms count would be a reasonable sentence for you; do you understand that's what you've agreed to?

THE DEFENDANT: Yes, your Honor.

THE COURT: Do you understand that you've also agreed in signing this that you will not appeal or litigate or challenge your sentence so long as I don't sentence you to more than 387 months in prison. Do you understand that that's what you've agreed to?

THE DEFENDANT: Yes, your Honor.

(P. 13-14.) Defense counsel noted that the quantity of narcotics in the S.D.N.Y. case "overlap[ped]" with the quantity to which Brown already had pled guilty to distributing in a case in federal court in Georgia (P. 14), and Judge Cote noted that Brown's right to argue that at sentencing was preserved (P. 14).

Brown admitted that he sold five kilograms and more of cocaine in the Bronx from 1999 to 2004 and that he possessed a firearm to assist in his drug distribution activity. (P. 15.) Brown stated that he knew at the time he committed them that his actions were illegal and wrong. (P. 15-16.) Judge Cote entered a judgment of guilty on both counts, and set a date for sentencing. (P. 16-17.)

Brown's case was reassigned to Judge Owen on January 30, 2007. (04 Cr. 113, Dkt. No. 86:1/30/07 Notice of Case Reassignment.) Sentencing occurred before Judge Owen on October 24, 2007. (04 Cr. 113, Dkt. No. 104: 10/24/07 Sentencing Transcript ["S."]) B. Alan Seidler, Brown's counsel, noted that Brown's sentence in Georgia was reduced because of his cooperation, but not as much as the defense would have liked, and that his overall sentence would have been much lower if the same drugs did not lead to prosecutions in two different districts. (S. 2-4.) Brown's counsel also argued that Brown was 62 years old and in poor health, and still had approximately eight years remaining on his Georgia sentence. (S. 6-7.) Assistant United States Attorney David M. Rody responded that Brown had trafficked "a whole lot of drugs for a lot of years." (S. 7.) A.U.S.A. Rody noted that a woman had been "absolutely brutally butchered" in Brown's "stash" apartment, although Brown had nothing to do with that murder. (S. 8-9.) Brown addressed Judge Owen, stating that he "made a mistake, a big mistake, and [he] realize[d][he] made a mistake." (S. 4.)

Because of Brown's age and poor health, Judge Owen departed below the sentencing guidelines range and the pre-sentence report recommendations, sentencing Brown to two hundred months for Count One (concurrent with the Georgia sentence) and the mandatory consecutive sixty months for the weapon charged in Count Two, for a total sentence of 260 months. (S. 14-16; see 04 Cr. 113, Dkt. No. 103: Judgment at 2.) A.U.S.A. Rody pointed out that on "page 4 of Mr. Brown's plea agreement dated February 9, 2006, there is a waiver provision which says that he will not appeal a sentence within or below the range of 322 to 387 months, and obviously the sentence [Judge Owen] has imposed is below that range." (S. 17.) Neither Brown nor his counsel responded to that comment. (S. 17-19.)

Brown's Petition for Habeas Corpus

Brown's petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence of 260 months (08 Civ. 8804, Dkt. No. 1: Pet.) asserts that: (1) "Ineffective Counsels' fundamental, prejudicial, gross negligence & Conflictive Cumulative Errors violated [his] rights" at both his plea hearing and at sentencing (Pet. ¶ 12(A)); (2) "Vindictive Prosecut[orial] Misconduct" involving "`spill over'" prejudice rendered "his sentence illegal & unfair" (Pet. ¶ 12(B));¹ and (3) the incorrect offense level was applied in calculating the sentencing guidelines in Brown's pre-sentence report (Pet. ¶ 12(C)). (Pet at 5.) In addition, Brown requested appointment of counsel (Pet. ¶ 12(D).) Moreover, in a supplement to his petition, Brown asserts that counsel was ineffective for allowing his sentence to be consecutive rather than concurrent (04 Cr. 113, Dkt. Nos. 108-09: Brown Rule 15 Motion to Amend Pet.)

ANALYSIS

I. BROWN'S ABILITY TO ASSERT A § 2255 PETITION IS BARRED BY HIS PLEA AGREEMENT, EXCEPT AS TO INEFFECTIVE ASSISTANCE OF COUNSEL AS TO HIS PLEA

Pursuant to his plea agreement, confirmed during his plea allocution, Brown waived his right to appeal or to collaterally or otherwise challenge any sentence which did not exceed the agreed-upon sentencing guidelines range. (See page 214-15 above.) The Second Circuit has held that "[w]here the record clearly demonstrates that the defendant's waiver of [his] right to appeal a sentence within an agreed Guidelines range was knowing and voluntary, that waiver is enforceable." United States v. Monzon, 359 F.3d 110, 116 (2d Cir. 2004).² In addition, the Second Circuit has held that "[t]here is no general bar to a waiver of collateral attack rights in a plea agreement." Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir.2002) (citing Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir.2001) (§ 2255 waiver, like...