U.S. v. Brisbane

• Decision Date: 28 July 2010
• Docket Number: Civil Action No. 07-1506(RBW),Criminal Action No. 02-315(RBW)
• Citation: 729 F.Supp.2d 99
• Parties: UNITED STATES of America, v. George BRISBANE, Defendant.
• Court: U.S. District Court — District of Columbia

729 F.Supp.2d 99

UNITED STATES of America,

v.George BRISBANE, Defendant.

Criminal Action No. 02-315(RBW).

Civil Action No. 07-1506(RBW).

United States District Court, District of Columbia.

July 28, 2010.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

This matter comes before the Court upon the pro se Petition to Vacate Defendant's Conviction Pursuant to 28 U.S.C. § 2255, and Memorandum and Points of Authorities in Support Thereof ("Def.'s Mem."). The defendant, George Brisbane, alleges that his conviction and sentence for the sale of cocaine were obtained in violation of his Sixth Amendment right to effective representation, and in violation of the Double Jeopardy Clause of the Fifth Amendment. Also before the Court is the defendant's Motion to Alter or Amend Judgment/Order of 2/19/08, pursuant to Federal Rule of Civil Procedure 59(e) ("Def.'s Rule 59(e) Mot."). The petitioner seeks an evidentiary hearing, a new trial, or immediate release. These motions are opposed by the government, see United States' Opposition to Petition to Vacate Defendant's Conviction Pursuant to 28 U.S.C. § 2255 ("Gov't's Opp'n"). For the reasons that follow, this Court will deny in part the defendant's motions, and order an evidentiary hearing solely to address the defendant's claim that his trial counsel was ineffective for failing to investigate and present an entrapment defense.

I. Factual and Procedural Background

On January 28, 2003, the defendant was found guilty by a jury of distributing five grams or more of "cocaine base," in violation of 21 U.S.C. § 841(b)(1)(B)(iii) (2006). Although the government had indicted the defendant for the sale of "cocaine base, also known as crack," this Court determined, in response to a mid-trial Motion for Judgment of Acquittal by the defendant'strial counsel James L. Lyons, that the government had only introduced evidence sufficient to prove the sale of cocaine base. 1/23/03 Tr. 155-56. However, because this Court ruled that § 841 merely required the government to prove the substance in question was cocaine base, it allowed that question to go before the jury.¹Id. This Court then sentenced the defendant to 360 months in prison and 8 years supervised release, based on the amount of cocaine base in question and the defendant's status as a Career Offender.

On appeal to the District of Columbia Circuit, the defendant, now represented by Law Professor Adam H. Kurland, raised the following four claims: (1) the evidence was insufficient to support a finding that the substance at issue was cocaine base within the meaning of Section 841(b)(1)(B)(iii); (2) under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the use of the defendant's prior narcotics conviction to enhance his statutory sentence under § 841 should have been alleged in the indictment and proven beyond a reasonable doubt to the jury; (3) the Court abused its discretion in dismissing two trial jurors; and (4) at sentencing, the Court erroneously considered the defendant's prior conviction for Escape as a crime of violence in concluding that he qualified as a Career Offender. See United States v. Brisbane, 367 F.3d 910, 915 n. 6 (D.C.Cir.2004). The District of Columbia Circuit unanimously rejected the latter three claims, id. at 915 n. 6, but ruled that because the government had failed to prove that the substance the defendant was convicted of distributing "was smokable [or] that it was crack," the conviction under § 841 could not stand. Id. at 914. The unanimous panel went on to hold on "the issue of remedy" that

[d]istribution of "cocaine" is a lesser included offense of distribution of "cocaine base." The elements of the latter offense include all the elements of the former, plus proof that the type of cocaine is "cocaine base" within the meaning of subsection (iii). See Kelly v. United States, 370 F.2d 227, 228 (D.C.Cir.1966). There is no doubt that the government's evidence sufficiently supported Brisbane's conviction for distributing "cocaine," although the evidence did not support his conviction for distributing "cocaine base" as that term may be understood under either of the options discussed above.

Id. at 914-15. Hence, the defendant's conviction was vacated and remanded "with instructions to enter a judgment of conviction for 'cocaine' and to sentence accordingly." Id. at 915. On May 25, 2005, this Court entered a judgment of conviction against the defendant for distribution of cocaine, and the defendant, now represented by Cary Clennon, was re-sentenced to 327 months imprisonment and five years supervised release.

The defendant again appealed. Through Gregory B. English, now his fourth lawyer, the defendant argued (1) that distribution of cocaine hydrochloride is not a lesser included offense of the distribution of cocaine base, and (2) that the defendant's prior convictions were elements of the offense and thus were required to be charged in the indictment and proven beyond a reasonable doubt to the jury. The defendant's conviction was summarily affirmed on March 7, 2006. U.S. v. Brisbane, No. 05-3098, at 1 (D.C.Cir. Mar. 7, 2006) (unpublished). The defendanttwice filed in the Supreme Court petitions for certiorari-first through appellate counsel Kurland, then through appellate counsel English-but each petition was denied. See Brisbane v. U.S., 543 U.S. 938, 125 S.Ct. 342, 160 L.Ed.2d 245 (2004); Brisbane v. U.S., 549 U.S. 943, 127 S.Ct. 374, 166 L.Ed.2d 253 (2006).

The defendant, now proceeding pro se, filed this timely motion under 28 U.S.C. § 2255 on September 1, 2007. After failing to respond to or acknowledge the defendant's motion as ordered by the Court on November 27, 2007, November 27, 2007 Order at 1, the Court ordered the government to file a response on or before February 1, 2008, or risk the entry of a judgment for the defendant, January 15, 2008 Order to Show Cause at 1. Although the deadline for the government's response had not yet come to pass, the defendant filed a motion on January 28, 2008, requesting that the Court, inter alia, enter judgment in his favor of due to the government's failure to file its response in a timely fashion. Petitioner's [ ] Motion to Compel [ ] Judgment in Demand [ ] Pursuant to Section [ ] 2255 Proceedings Rules 4(b), and 5(a)-(d) at 2. Meanwhile, the Court "learned that the attorney listed as counsel of record on behalf of the United States [was] no longer employed by the Office of the United States Attorney," February 19, 2008 Order at 1, and because the United States [had] not received either of the Court's prior orders," id. at 1-2, the Court vacated the January 15, 2008 Order and directed the government to file a memorandum in opposition to the defendant's Section 2255 motion on or before March 31, 2008, id. at 2.

The defendant continued to press on, however, and on February 21, 2008, he moved for summary judgment, arguing once again that he is entitled to judgment in his favor because of the government's failure to timely file a response to his Section 2255 motion. Motion for Summary Judgment for Failure of Respondent to Oppose Petitioner's Timely 2255 (2000) Motion to Vacate Unconstitutional Conviction and Sentence at 1. Given that the Court had already ordered the government to file its opposition memorandum by March 31, 2008, the Court denied both the defendant's motion to compel judgment, as well as his motion for summary judgment. February 27, 2008 Order at 2.

In response to the Court's latest order, the defendant filed yet another motion on February 29, 2008, this time asking the Court to vacate, alter, or amend its February 19, 2008 Order and to reinstate its January 15, 2008 Order. Def.'s Rule 59(e) Mot. at 1. Furthermore, the defendant requests that the Court enter judgment in his favor based on the government's delayed response, or alternatively to proceed without allowing the government to file any responsive pleadings. Def.'s Rule 59(e) Mot. at 9; see also Defendant's Motion for Summary Judgment, and Reply to Respond[e]nts Opposition to Petitioner's 28 U.S.C. § 2255 [Motion] to Vacate Unconstitutional Conviction and Sentence ("Def.'s Reply") at 4. Each of these motions will be addressed below.

II. Analysis

A. Defendant's Motion to Alter or Amend The Court's Order of February 19, 2008 and to Reinstate the Court's January 17, 2008 Order Pursuant to Federal Rule of Civil Procedure 59(e)

Pursuant to Federal Rule of Civil Procedure 59(e), the defendant requests that the Court vacate its Order of February 19, 2008, and enter judgment for him based on the government's delayed response, or alternatively to proceed without allowing the government to file any responsive pleadings. Def.'s Reply at 3.Rule 59(e) "makes clear that [a] district court possesses the power asserted in [a] case [in which such a motion is filed] to alter or amend a judgment after its entry." Advisory Committee Notes. A Rule 59(e) motion " 'is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.' " Messina v. Krakower, 439 F.3d 755, 758 (D.C.Cir.2006) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996)).

The defendant argues that the government, by failing to respond to his motion by February 1, 2008, "has defaulted," and that its excuse (the attorney of recording having retired) is "totally inexcusable." Def.'s Reply at 2. The defendant cites Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427 (1970) (Douglas, J., concurring) for the proposition that

[t]he staff of the prosecution is a unit and each member must be presumed to know the commitments made by any other member. If responsibility could be evaded that way, the prosecution would have designed another deceptive 'contrivance,' akin to those we condemned in Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79

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