Brown v. U.S.

• Decision Date: 26 July 1999
• Docket Number: Civil Action No. 96-2865 (MLC).
• Citation: 75 F.Supp.2d 345
• Parties: Carl BROWN, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of New Jersey

75 F.Supp.2d 345

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

Civil Action No. 96-2865 (MLC).

United States District Court, D. New Jersey.

July 26, 1999.

Lisa Van Hoeck, Assistant Federal Public Defender, Trenton, NJ, for Petitioner.

Thomas A. Brown, Jr., Assistant United States Attorney, Camden, NJ, for Respondent.

MEMORANDUM OPINION

COOPER, District Judge.

This matter comes before the Court on the motion of petitioner Carl Brown to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth in this Memorandum Opinion, the Court will deny petitioner's motion.

I. BACKGROUND

Petitioner was indicted in a two-count Indictment charging him with the following: (1) possession with intent to distribute in excess of 50 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Count One), and (2) possession with intent to distribute in excess of 50 grams of crack cocaine within 1,000 feet of a public elementary school in violation of 21 U.S.C. § 860 (Count Two). (Indictment, United States v. Brown, Crim. No. 94-393(MLP), filed 7-26-94.) The charges arose out of the arrest of petitioner on April 30, 1994 in Camden, New Jersey, in which approximately 188 grams of crack cocaine were found to be in his possession during surveillance of a drug sales transaction. (Presentence Investigation Report dated 1-31-95 ("PSR") ¶¶ 8, 9.) Petitioner pled guilty on November 1, 1994 to the Count One charge, pursuant to a written plea agreement. (Id. ¶ 1.) Petitioner was represented by retained counsel throughout the proceedings in the District Court.

The sentencing hearing was conducted on February 3, 1995, at which petitioner received a sentence of 262 months imprisonment, 5 years of supervised release, and a waiver of any fine. (Judgment of Conviction entered 2-7-95.) The term of imprisonment was at the low end of his Guideline range of 262 to 327 months, based upon a total offense level of 34 and a criminal history category of VI. (PSR ¶ 53.) His offense level and criminal history included career offender enhancements pursuant to Guideline section 4B1.1.¹ (Id. ¶¶ 23, 35.) See U.S. Sentencing Guidelines Manual ("USSG" or "Guidelines") § 4B1.1 (Nov.1994). The qualifying prior convictions for career offender status were state offenses of aggravated assault on a police officer, possession of controlled dangerous substance with intent to distribute, and possession of C.D.S. together with aggravated assault on a police officer.² (PSR ¶¶ 29, 33, 34.)

Petitioner thereafter obtained the services of appointed counsel, the Federal Public Defender's Office, and filed his appeal. His judgment of conviction and sentence were summarily affirmed, without prejudice to his right to raise ineffective assistance of counsel claims on collateral review. United States v. Brown, No. 95-5205, 1995 WL 729441 (3d Cir. Nov.29, 1995) (unpublished judgment order). Petitioner, who continues to be represented by the Public Defender, timely filed the instant motion (hereinafter "Petition" or "Pet.") pursuant to 28 U.S.C. § 2255.³ We have considered the Petition on the papers submitted in accordance with Federal Rule of Civil Procedure 78.⁴

II. DISCUSSION

A. Petitioner's Allegations

Section 2255 of Title 28, United States Code, provides that a prisoner in custody under sentence of a federal court may move before the court which imposed the sentence to vacate, correct, or set aside a sentence, on the grounds that

the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.

28 U.S.C. § 2255. The instant Petition seeks to vacate, set aside or correct the sentence claiming ineffective assistance of counsel in the following respects: (1) his counsel allegedly failed to move for a downward departure under Guidelines section 4A1.3 on the ground that the career offender designation overstated the seriousness of defendant's criminal history, (Pet. Br. at 7-14), and (2) before defendant pled guilty he was allegedly told by his counsel that if he entered a guilty plea he would receive a ten-year sentence, and he was not told of possible career offender status. (Pet. Supp. Br. at 1). Petitioner has the burden of establishing each of the claims in the Petition. See United States v. Abbott, 975 F.Supp. 703, 705 (E.D.Pa. 1997).

B. Standard for Ineffective Assistance of Counsel

Petitioner asserts each of his claims under the theory of ineffective assistance of counsel. A petitioner is barred from collaterally attacking his sentence pursuant to 28 U.S.C. § 2255 so far as that attack is based upon alleged errors that could have been, but were not, raised on direct appeal. See United States v. Frady, 456 U.S. 152, 162-63, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Essig, 10 F.3d 968, 979 (3d Cir.1993). To avoid the resulting procedural bar, a petitioner generally must prove "both (1) `cause' excusing his ... procedural default, and (2) `actual prejudice' resulting from the errors of which he complains." Frady, 456 U.S. at 168, 102 S.Ct. 1584. A petitioner need not, however, demonstrate cause and prejudice when he raises a claim of ineffective assistance of counsel initially in a § 2255 motion. The Third Circuit has clearly stated its preference that such claims be addressed in the first instance by the district court under a § 2255 motion. See, e.g., United States v. Tobin, 155 F.3d 636, 643 (3d Cir.1998); United States v. Nahodil, 36 F.3d 323, 326 (3d Cir.1994); United States v. DeRewal, 10 F.3d 100, 103-04 (3d Cir.1993), cert. denied, 511 U.S. 1033, 114 S.Ct. 1544, 128 L.Ed.2d 196 (1994). Accordingly, we will review each issue on the merits.

The Sixth Amendment provides in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. A defendant has a Sixth Amendment right not just to counsel, but to "`reasonably effective assistance' of counsel." United States v. Day, 969 F.2d 39, 42 (3d Cir.1992) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The Supreme Court in Strickland has set forth a two-pronged test for evaluating claims of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland, 466 U.S. at 687, 104 S.Ct. 2052. As with any other claim under § 2255, the burden of proving ineffective assistance of counsel is on the petitioner. Virgin Islands v. Nicholas, 759 F.2d 1073, 1081 (3d Cir.1985).

The appropriate measure of attorney performance is "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. 2052. A defendant asserting a claim of ineffective assistance of counsel must "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690, 104 S.Ct. 2052. Courts must recognize the strong presumption that counsel has rendered adequate assistance and that all significant decisions were made in the exercise of reasonable professional judgment. Id. at 689, 104 S.Ct. 2052; see also Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir.1999); Reese v. Fulcomer, 946 F.2d 247, 256-57 (3d Cir.1991), cert. denied, 503 U.S. 988, 112 S.Ct. 1679, 118 L.Ed.2d 396 (1992); United States v. Gray, 878 F.2d 702, 710 (3d Cir.1989). The evaluation of the objective reasonableness of counsel's performance must be made "from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential." Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

The second prong of the Strickland test requires the petitioner to show that counsel's deficient performance prejudiced the defense. Thus, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691, 104 S.Ct. 2052. The petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.

The Strickland Court further held that both prongs must be established in order to meet the claimant's burden, and that if either prong is not satisfied the claim must be rejected, stating:

Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.

Id. at 697, 104 S.Ct. 2052.

The established test for determining the validity of a guilty plea is "whether...