United States v. Brazil
| Decision Date | 05 February 2015 |
| Docket Number | Case No. 07-cr-20531 |
| Court | U.S. District Court — Eastern District of Michigan |
| Parties | UNITED STATES OF AMERICA, Plaintiff/Respondent, v. STANLEY BRAZIL, Defendant/Petitioner. |
Honorable Thomas L. Ludington
Stanley Brazil is serving a 380-month sentence for distributing crack cocaine. On February 22, 2012, Brazil filed an amended motion to vacate his sentence under 28 U.S.C. § 2255. Although Brazil alleged numerous constitutional violations, see Pet'r's Am. Mot., ECF No. 292, each was rejected save two, see Oct. 1, 2013 Op. & Order 26, ECF No. 333. Brazil's remaining claims are as follows: (1) trial counsel was ineffective because he did not raise a Batson challenge during voir dire and appellate counsel was ineffective for failing to raise the issue on appeal; and (2) trial counsel was ineffective for presenting an entrapment defense at trial. Id.
The facts underlying Brazil's case have been set forth on numerous occasions. See, e.g., United States v. Brazil, 395 F. App'x 205, 208-13 (6th Cir. 2010); Jan. 29, 2013 Report & Rec. 2-4, ECF No. 322; Oct. 1, 2013 Op. & Order 1-3, ECF No. 333. So only the facts necessary to this opinion will be reproduced here.
Brazil was charged, by indictment, with conspiring to distribute "50 grams or more of cocaine base, commonly known as crack cocaine," and two counts of knowingly distributing "50 grams or more of a substance containing cocaine base (crack cocaine) . . . ." Indictment 2, 10, 11, ECF No. 3. A first superseding indictment added additional counts against some of Brazil's nine co-defendants, but the three counts against him remained the same. See Super. Indictment 1-2, 10, 11, ECF No. 41. On September 15, 2008, the day before trial, the government moved to "dismiss Count one of the first superseding indictment"—the conspiracy count—"to narrow the issues presented at trial and conserve judicial resources." Resp't's Mot. Dismiss 1, ECF No. 166. The motion was granted, and Brazil proceeded to trial on charges that he unlawfully distributed more than 50 grams of crack cocaine on two separate occasions.
Brazil's trial began on September 16, 2008, with the selection of the jury. Brazil was represented at trial by Carl Marlinga. After each prospective juror was seated and questioned, the Court inquired if the government had any challenges "for cause." Voir Dire Tr. 61, ECF No. 334. The government had "[n]one." Id. The Court then moved to peremptory challenges. The government first asked that "Juror No. 1, Miss LaLonde" be excused. Id. at 61-62. The Court did so without objection. With its next peremptory challenge, the government asked the Court "to thank and excuse Juror No. 5, Mr. Mattson." Id. at 69. The Court then excused Mr. Mattson. With its third peremptory challenge, the government asked that "Juror No. 12, Miss Sanders" be excused. Id. at 76.
At that point, after the government exercised its third peremptory challenge on Miss Sanders, Mr. Marlinga (Brazil's counsel) requested a sidebar. Mr. Marlinga said that there was "only one African-American" member in Brazil's jury venire—Miss Sanders—and she was"excused in a peremptory challenge." Id. at 77. Mr. Marlinga indicated he was "concerned" that the only minority member of the venire was excused in this manner, and he wanted "to note [his] objection." Id.
The Court then asked the government to explain "the exercise of [its] peremptory" challenge on Miss Sanders. Counsel for the government explained, "[s]he said she was very close to her brother and she didn't agree with drug penalties." Id. Miss Sanders's brother was "incarcerated" by the State of Michigan due to drug offenses. Id. at 26. After a short recess, the Court summarized the issue:
Just to sum up, we had a challenge based on the fact we had a single African-American party that was seated on the jury. Indeed, it was a single African-American on the panel. The government has exercised a peremptory. The challenge has been made by the defense, and I think the present showing has been at least established under the Batson procedure by the offering of the objection. The government's response has offered a racially-neutral justification for the exercise of the peremptory. . . . So in that respect, I believe the gentleman has offered a racially-neutral explanation for the exercise of the peremptory challenge and I would respectfully overrule the challenge.
Id. at 79-80. After the Court overruled Mr. Marlinga's objection, Miss Sanders was excused. Id. at 80.
The government asked that the next juror seated be excused for cause, and when Mr. Marlinga raised no objections, the juror was excused. Id. at 94. The government used two more peremptory challenges to excuse potential jurors "Mr. Battle" and "Mr. Piontkowski." Id. at 104, 109. At that point, the government was "satisfied with the panel." Id. at 116. Because Mr. Marlinga and Brazil were also "satisfied with this jury[,]" voir dire concluded. Id. Brazil's Batson claim, after additional briefing, was denied on June 27, 2014. June 27, 2014 Op. & Order, ECF No. 362.
During Brazil's trial, on cross examination of the government's third witness (ATF Agent Tom Bowden), Mr. Marlinga, without admitting that Brazil had committed a crime, asserted "that Brazil would never have engaged in any criminal activity had the police not sought to entrap him." Brazil, 395 F. App'x at 211. Of course, this entrapment line of inquiry Id. (citation omitted). Accordingly, on redirect examination, Bowden testified regarding Brazil's role in a Saginaw gang known for drug trafficking (the Sunnyside Gang).
An Evidentiary Hearing was held on September 15, 2014 regarding the propriety of Mr. Marlinga's use of the entrapment defense. During the hearing Mr. Marlinga was examined by Brazil's current counsel and by the government. Brazil also called an expert witness, attorney John Minock, over the objections of the government. Mr. Minock was cross-examined by the government regarding his opinion that Mr. Marlinga's decision to employ the entrapment defense was unreasonable. Following the hearing, the parties were directed to submit one final set of supplemental briefs, both of which were timely filed. See Supp. Brs., ECF Nos. 377-78.
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the familiar Strickland standard by demonstrating that (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). The Court must "indulge in a strong presumption that counsel's conduct falls within the wide range of reasonableprofessional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged conduct might be considered sound . . . strategy." Id. at 689. In assessing deficient performance, "reviewing courts must take care to avoid 'second-guessing' strategic decisions that failed to bear fruit." Lundgren v. Mitchell, 440 F.3d 754, 769-70 (6th Cir. 2006) (quoting Strickland, 466 U.S. at 689). And, importantly, even if a petitioner shows counsel's performance was deficient, he must then demonstrate that Strickland, 466 U.S. at 694.
When attacking the performance of trial counsel, a petitioner must demonstrate that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Sanders v. Curtin, No. 11-1712, 2013 WL 3214962, at *12 (6th Cir. June 26, 2013) (quoting Kinnard v. United States, 313 F.3d 933, 935 (6th Cir. 2002)). In other words, this Court "should look to whether the seriousness of counsel's errors deprived the defendant of a fair trial." Sanders, No. 11-1712, 2013 WL 3214962, at *12 (citing Kinnard, 313 F.3d at 935). "A court is free to 'dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,' as opposed to first determining whether counsel's performance was deficient." Sanders, No. 11-1712, 2013 WL 3214962, at *12 (quoting Strickland, 466 U.S. at 697).
Traditionally, an examination of the possible ineffectiveness of counsel is the first step in the Strickland inquiry. This first step usually involves an evidentiary hearing "to ascertain whether counsel's conduct was motivated by sound strategy." United States v. Brazil, 395 F.App'x 205, 220 (6th Cir. 2010) (citing United States v. Warman, 578 F.3d 320, 348 (6th Cir. 2009)). While a court can dispose of an ineffective assistance claim without an evidentiary hearing if there is insufficient prejudice, Sanders, No. 11-1712, 2013 WL 3214962, at *12, holding an evidentiary hearing in the present case was appropriate following the appeal. While the case was the before the Sixth Circuit Brazil argued his claim of ineffective assistance of counsel. The government, however, responded that it was premature to address the ineffective assistance claim without an evidentiary hearing on the issues underlying the claim. Br. for Appellee at 23-24, Brazil, 395 F. App'x 205. The Sixth Circuit agreed that raising the issue was premature and should wait, citing to the "general rule [that] defendant[s] may not raise ineffective-assistance-of-counsel...
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