Brown v. U.S.

• Decision Date: 29 September 2008
• Docket Number: No. 403CR001.,No. 407CV085.,407CV085.,403CR001.
• Parties: Meier Jason BROWN v. UNITED STATES of America.
• Court: U.S. District Court — Southern District of Georgia

583 F.Supp.2d 1330

Meier Jason BROWN v. UNITED STATES of America.

No. 407CV085.

No. 403CR001.

United States District Court, S.D. Georgia, Savannah Division.

September 29, 2008.

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George Terry Jackson, Jackson & Schiavone, Jeffrey L. Ertel, Donald F. Samuel, Garland & Loeb, PC, Atlanta, GA, Harry D. Dixon, Jr., Donnie Dixon, Savannah, GA, for Plaintiff.

Amy Lee Copeland, U.S. Attorney's Office, Savannah, GA, for Defendant.

ORDER

B. AVANT EDENFIELD, District Judge.

I. INTRODUCTION

After convicting Meier Jason Brown of robbing and murdering a federal employee within federal jurisdiction, a jury (and thus this Court) sentenced him to death. Doc. # 276, aff'd, U.S. v. Brown, 441 F.3d 1330 (11th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1149, 166 L.Ed.2d 998 (2007). Brown now moves, over the Government's opposition, for 28 U.S.C. § 2255 relief. 407CV085, doc. ##8, 50, 54. He also moves for discovery and for an evidentiary hearing. Doc. # 52, as supplemented, # 66; # 53, as supplemented, # 67. The Government opposes those motions too. Doc. ## 55, 56.

II. BACKGROUND

Brown comprehensively details the facts; familiarity with them is presumed here. In a nutshell, Brown murdered postal employee Sallie Gaglia at a post office so he could rob some postal money orders that, posing as a customer, he had just asked her to prepare. See Brown, 441 F.3d at 1337-1342. The trial proceeded in two (guilt-innocence liability and penalty) phases. In the first, the jury convicted him of violating 18 U.S.C. § 1111 (murder within the U.S. territorial jurisdiction); 18 U.S.C. § 1114 (murder of a federal employee) and 18 U.S.C. § 2114 (robbery of federal property). Id. at 1342. In the second, it sentenced him to death after hearing aggravating and mitigating evidence. Id. at 1342-43.

III. ANALYSIS¹

A. Procedural Standards

1. Claims Resolution

District courts must address § 2255 motions in plenary, not summary, fashion. Kicklighter v. U.S., 2008 WL 2421728 at *6 (11th Cir. June 17, 2008) (unpublished) (a district court should explain the reasoning behind its denial of § 2255 relief in order to provide the appellate court with a sufficient basis for review); Jernigan v. U.S., 180 Fed.Appx. 56, 58 (11th Cir.2006).

2. Procedural Default

The procedural default doctrine constrains defendants to fully and timely raise all objections and defenses. Thus,

[a] defendant who fails to object at the trial court level to error he believes the court has committed or fails to raise such objection on appeal is procedurally barred from presenting his objection in a motion subsequently filed under 28 U.S.C. § 2255 absent a showing of cause and prejudice or a fundamental miscarriage of justice. See United States v. Frady, 456 U.S. 152, 166-68, 102 S.Ct. 1584, 1593-94, 71 L.Ed.2d 816 (1982); Mills v. United States, 36 F.3d 1052, 1055 (11th Cir.1994).

Genge v. U.S., 2008 WL 2220629 at *1 (11th Cir.2008) (unpublished). "A prisoner collaterally attacking his conviction can establish cause if he can show that some objective factor external to the defense impeded counsel's efforts to comply with the procedural rule." Id. (quotes, cites and alterations omitted).

If a defendant fails to show cause, then courts need not go on to determine whether there is prejudice, and vice-versa. McCleskey v. Zant, 499 U.S. 467, 502, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). But if he does show cause, then he must also show actual prejudice from the alleged constitutional violation, i.e. that the errors at his trial "`worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (quoting Frady, 456 U.S. at 170, 102 S.Ct. 1584).

Even if a defendant cannot show cause and prejudice, he may still receive consideration on the merits of his procedurally defaulted claim if he can establish a fundamental miscarriage of justice, Schlup v. Delo, 513 U.S. 298, 314-15, 115 S.Ct. 851, 130 L.Ed.2d 808, (1995), though this is very rare and is commonly recognized where it can be said that a constitutional violation has probably resulted in the conviction of one who is actually innocent. Davis v. Terry, 465 F.3d 1249, 1253 n. 4 (11th Cir.2006) (citing Murray, 477 U.S. at 496, 106 S.Ct. 2639).

Finally, courts "are not required to reconsider in § 2255 motions claims that were raised and disposed of on direct appeal," Evans v. U.S., 218 Fed.Appx. 924, 926 (11th Cir.2007) (citing Mills v. U.S., 36 F.3d 1052, 1055 (11th Cir.1994)), as they are similarly defaulted. Id.

3. Discovery, Evidentiary Hearings

A § 2255 movant seeking discovery must show good cause. 28 U.S.C. § 2255 Rule 6(a); Phelps v. U.S., 2007 WL 2109244 at *10 (E.D.Tenn. July 18, 2007) (unpublished). That can be shown where specific allegations support reason to believe that the movant may, if the facts are fully developed, be able to demonstrate that he is entitled to relief. U.S. v. Roane, 378 F.3d 382, 402-03 (4th Cir.2004). And when an evidentiary hearing also is sought, courts must conduct one

"unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; see also Anderson v. United States, 948 F.2d 704, 706 (11th Cir.1991) (holding that, unless the record is adequate to show conclusively that the movant's contentions are without merit, the district court must conduct a hearing). On review, the court "must accept all of the petitioner's alleged facts as true and determine whether the petitioner has set forth a valid claim." Diaz v. United States, 930 F.2d 832, 834 (11th Cir.1991) (quotation omitted). However, "on habeas a federal district court need not conduct an evidentiary hearing if it can be conclusively determined from the record that the petitioner was not denied effective assistance of counsel."

Paez-Ortiz v. U.S., 200 Fed.Appx. 946, 948 (11th Cir.2006)²; see also Tucker v. U.S., 275 Fed.Appx. 402, 404 (5th Cir.2008).

However, bald assertions and conclusory allegations will not suffice. See Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir.1987) ("Just as bald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing ... neither do they provide a basis for imposing upon the state the burden of responding in discovery to every habeas petitioner who chooses to seek such discovery"), quoted in U.S. v. Lopez, 2007 WL 3196626 at *5 n. 4 (E.D.Pa.2007) (unpublished).

B. The Merits

1. Ineffective Assistance

As is par for the course in capital habeas cases, Brown alleges that his two appointed trial lawyers provided him with ineffective assistance of counsel (IAC), so imposition of the conviction and sentence against him violates his Sixth Amendment right to counsel. Doc. # 51. In almost every claim discussed below, Brown enmeshes IAC allegations, so it is somewhat difficult to specify them in an organized format. In any event, his main IAC charge is poor execution of counsel's sentencing-phase strategy (i.e., counsel failed to competently investigate and present mitigation evidence to the jury).

To that end, trial counsel have both tendered affidavits supporting Brown's IAC claims against them. Doc. # 53, App. 1 & 5. Mental health and other experts, along with a mitigation specialist, have also have chimed in. Id., App. 3 (31 pages of postconviction-gathered, mitigation evidence); App. 6 ¶ 5 (two M.D.'s who "have concluded that Meier Brown suffers from diagnosable mental diseases or defects, and that there is considerable evidence in his background and social history that could be considered mitigating...."); App. 7 (postconviction expert's opinion that Brown would pose no future danger to society if life-sentenced); App. 8 (federal prison system's psychiatric examiner complaining that trial counsel were uncooperative but in any event Brown is not a malingerer or sociopathic and was remorseful).

In both 28 U.S.C. § 2255 and 28 U.S.C. § 2254 (state habeas) proceedings the same IAC questions are asked: Was counsel's performance deficient and if so, did it prejudice the defense to the point where the outcome would otherwise have been different? Williams, Jr. v. Allen, 542 F.3d 1326, 1342 (11th Cir.2008); see also id. ("In a case challenging a death sentence, the question is whether there is a reasonable probability that, absent the errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.") (quotes, cite and alterations omitted); Newland v. Hall, 527 F.3d 1162, 1184 (11th Cir.2008); Alderman v. Terry, 468 F.3d 775, 795 (11th Cir.2006) (Even if defense counsel, in capital re-sentencing trial, were deficient in not presenting more life-history evidence, defendant was not prejudiced).

The same must be said for IAC claims against appellate counsel. Shere v. Secretary, Florida Dept. of Corrections, 537 F.3d 1304, 1310 (11th Cir.2008) (Defendant may establish ineffective assistance of appellate counsel by showing: (1) appellate counsel's performance was deficient, and (2) but for counsel's deficient performance, defendant would have prevailed on appeal).

Brown thus must first show that his lawyers failed to meet the standard of reasonableness under prevailing professional norms. Newland, 527 F.3d at 1184. Judicial evaluation of counsel's performance is highly deferential, indulging a strong presumption that (a) it was reasonable and (b) counsel made all significant decisions in the exercise of reasonable professional judgment. Id.

No hindsight judgment is permitted, and the review is objective—whether there was any reasonable justification for counsel's conduct. Id. At bottom, Brown must establish that no competent counsel would have taken the action that his counsel did take, id.—that "the course of action taken...