Brown v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MARKEITH BROWN,

Petitioner,

v. Case No.: 2:16-cv-405-FtM-38MRM

Case No.: 2:14-cr-21-FtM-38MRM

UNITED STATES OF AMERICA,

Respondent.

/

OPINION AND ORDER1

Before the Court is Petitioner Markeith Brown’s Motion Under 28 U.S.C. § 2255 to

Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody (Doc. 1; Cr-

Doc. 57)2 and Memorandum of Law in Support (Doc. 2; Cr-Doc. 58). The Government

opposes the motion (Doc. 9), to which Brown has filed a reply (Doc. 11). The Court held

an evidentiary hearing on May 1, 2019, at which Brown was presented and represented

by counsel. (Doc. 25). For the below reasons, the Court denies his motion.

1 Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or

websites. These hyperlinks are provided only for users’ convenience. Users are

cautioned that hyperlinked documents in CM/ECF are subject to PACER fees. By

allowing hyperlinks to other websites, this Court does not endorse, recommend, approve,

or guarantee any third parties or the services or products they provide on their websites.

Likewise, the Court has no agreements with any of these third parties or their websites.

The Court accepts no responsibility for the availability or functionality of any hyperlink.

Thus, the fact that a hyperlink stops working or directs the user to some other site does

not affect the opinion of the Court.

2 The Court refers to filings in this civil action as “Doc.” and to filings in the criminal docket,

No. 2:14-cr-21-FtM-38MRM, as “Cr-Doc.”

BACKGROUND

On March 5, 2014, a federal grand jury indicted Brown for knowingly possessing

with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1).

(Cr-Doc. 1). This offense carried a penalty of five to forty years imprisonment. The Court

appointed Russell Rosenthal, an Assistant Federal Defender (“Counsel”), to represent

Brown. (Cr-Doc. 15).

On September 30, 2014, Brown pled guilty. Under the plea agreement, Brown

expressly waive[d] the right to appeal [his] sentence on any

ground, including the ground that the Court erred in

determining the applicable guidelines range pursuant to the

United States Sentencing Guidelines, except (a) the ground

that the sentence exceeds the defendant’s applicable

guidelines range as determined by the Court pursuant to the

United States Sentencing Guidelines; (b) the ground that the

sentence exceeds the statutory maximum penalty; or (c) the

ground that the sentence violates the Eighth Amendment to

the Constitution[.]

(Cr-Doc. 22 at 14 (emphasis original)). In exchange, the Government agreed to

recommend a three-level decrease for Brown’s acceptance of responsibility, move for a

downward departure because of his cooperation, and not to oppose a low-end guidelines

sentence. (Cr-Doc. 22 at 3-5). The Court accepted Brown’s plea and adjudicated him

guilty.

On July 6, 2015, the Court sentenced Brown to 120 months’ imprisonment, lower

than the calculated guidelines range. (Cr-Doc. 47). The Presentence Investigation

Report (“PSR”) scored his base offense level at 26. (Cr-Doc. 39 at ¶ 26). Although no

specific offense characteristic applied, the PSR found Brown a career offender under

U.S.S.G. § 4B1.1 because of his prior drug convictions. (Cr-Doc. 39 at ¶ 32). The career

offender status raised the offense level to 34. (Cr-Doc. 39 at ¶ 32). Then, with a three-

level decrease for accepting responsibility, Brown’s total offense level was 31. (Cr-Doc.

39 at ¶¶ 34-36). Brown’s criminal history points led to a Category IV designation. But,

because of his career offender status, the category jumped to VI. (Cr-Doc. 39 at ¶¶ 48-

50). An offense level of 31 and a criminal history category VI gave Brown a guidelines

range of 188 to 235 months. (Cr-Doc. 39 at ¶ 89). Brown objected to neither the PSR’s

factual accuracy nor guidelines calculation. (Cr-Doc. 64 at 7).

Brown did, however, file a sentencing memorandum. (Cr-Doc. 45). He argued a

criminal history category of VI overrepresented his past. The Court agreed and departed

downward one category. Brown also moved for a variance under 18 U.S.C. § 3553(a)

because of his family history, drug addiction, rehabilitative intent, and cooperation. The

Court agreed and varied downward. Coupling these decreases with the Government’s

U.S.S.G. § 5K1.1 motion, the Court sentenced Brown to 120 months’ imprisonment. This

sentence was a 68-month reduction from the low-end of the guidelines range.

The Court entered Judgment on July 7, 2015. (Cr-Doc. 52; Cr-Doc. 53). Brown

never appealed. He self-surrendered about two months later.

Brown now moves under 28 U.S.C. § 2255 for collateral relief. (Doc. 1; Doc. 2).

He raises two grounds. In Ground One, Brown alleges Counsel rendered constitutionally

ineffective assistance by not filing a notice of appeal after Brown told him to do so. His

motion also identifies the grounds he wished to appeal. In Ground Two, Brown alleges

Counsel failed to object to sentencing enhancements. He requests “remand of his entire

involuntary plea, based on the Government’s misconduct, and counsel’s ineffectiveness

and below the standard of representation.” (Doc. 2 at 11). The Government opposes

any relief.

TIMELINESS

A habeas petition may not be filed more than one year from “the date on which the

judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). Brown’s judgment of

conviction became final on July 21, 2015. He thus had until the year after to file a

§ 2255 motion, and he did so with nearly two months to spare. The Government

concedes Brown’s motion to be timely. (Doc. 9 at 3).

EVIDENTIARY HEARING

A district court must hold an evidentiary hearing on a habeas petition “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(b). But “a district court is not required to hold an

evidentiary hearing where the petitioner’s allegations are affirmatively contradicted by the

record, or the claims are patently frivolous[.]” Aaron v. United States, 291 F.3d 708, 715

(11th Cir. 2002 (citation omitted); see also Gordan v. United States, 518 F.3d 1291, 1301

(11th Cir. 2008) (“An evidentiary hearing is not required whenever a petitioner asserts a

claim of ineffective assistance under section 2255.”). The Court found Ground One could

not be answered on the record and granted an evidentiary hearing on that claim only.

(Doc. 13).

LEGAL STANDARD

A prisoner in federal custody may move for his sentence to be vacated, set aside,

or corrected on four grounds: (1) the imposed sentence violates the Constitution or laws

of the United States; (2) the court lacked jurisdiction to impose the sentence; (3) the

sentence was over the maximum authorized by law; or (4) the imposed sentence is

otherwise subject to collateral attack. 28 U.S.C. § 2255(a). A § 2255 motion “may not be

a surrogate for a direct appeal.” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.

2004) (stating § 2255 relief is “reserved for transgressions of constitutional rights and for

that narrow compass of other injury that could not have been raised in direct appeal and

would, if condoned, result in a complete miscarriage of justice” (internal quotations

omitted)). The petitioner bears the burden of proof on a § 2255 motion. Rivers v. United

States, 777 F.3d 1306, 1316 (11th Cir. 2015) (citation omitted).

Generally, “claims not raised on direct appeal may not be raised on collateral

review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538

U.S. 500, 504 (2003). This procedural default rule “is a doctrine adhered to by the courts

to conserve judicial resources and to respect the law’s important interest in the finality of

judgments.” Id. There is an exception: ineffective assistance of counsel claims. Massaro,

538 U.S. at 504 (holding the failure to raise an ineffective-assistance-of-counsel claim on

direct appeal does not bar the claim from being brought in a later, appropriate proceeding

under § 2255).

Criminal defendants have a Sixth Amendment right to reasonably effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). A defendant

claiming ineffective assistance of counsel must show that (1) “counsel’s representation

fell below an objective standard of reasonableness”; and (2) the deficient performance

resulted in prejudice. Id. at 687; see Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)

(stating the Strickland test applies to claims that counsel was constitutionally ineffective

for failing to file a notice of appeal). Failing to show either Strickland prong is fatal. See

Kokal v. Sec’y, Dep’t of Corr., 623 F.3d 1331, 1344 (11th Cir. 2010) (stating “a court need

not address both Strickland prongs if the petitioner fails to satisfy either of them”).

“The reasonableness of a counsel’s performance is an objective inquiry.” Chandler

v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (footnote and citations omitted).

“And because counsel’s conduct is presumed reasonable, for a petitioner to show that

the conduct was unreasonable, a petitioner must establish that no competent counsel

would have taken the action that his counsel did take.” Id. (footnote and citations omitted).

Courts “must judge the reasonableness of counsel’s challenged conduct on the facts of

the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. at

690. “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too

tempting for a defendant to second-guess counsel’s assistance after . . . [an] adverse

sentence[.]” Strickland, 466 U.S. at 689 (citation omitted). Also, “Strickland encourages

reviewing courts to allow lawyers broad discretion to represent their clients by pursuing

their own strategy.” White v. Singletary, 972 F.2d 1218, 1221 (11th Cir. 1992).

For the prejudice prong, the petitioner must show “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Strickland, 466 U.S. at 694. Against this backdrop, the Court will address

Brown’s arguments.

DISCUSSION

A. Ground One

Brown argues that Counsel was ineffective for not filing a notice of appeal at his

direction. The Court held an evidentiary hearing on this claim. Brown called himself to

testify and introduced records from this proceeding and the underlying criminal case.

(Pet. Ex. 1-15). The Government called Counsel and introduced a letter dated July 22,

2015, from Counsel to Brown. (Gov. Ex. 1). The testimony and evidence are summarized

below:

Brown said that he called Counsel about a day after the sentencing hearing to

express his uneasiness with his sentence—he thought he could have done better

because of his help to the Government. According to Brown, Counsel said he received

a good sentence. Brown testified their conversation ended with him directing Counsel to

file an appeal. Brown admitted that he did not again talk to Counsel about an appeal and

denied receiving Counsel’s letter.

Counsel, a seventeen-year veteran federal public defender, took the stand next.3

He testified that he spoke to Brown on July 7, 2015 about the sentence and an appeal.

Counsel said that Brown was interested in disputing his sentence. He recalled telling

Brown that an appeal would not benefit him because none of the grounds to appeal under

the appellate waiver applied.4 Counsel believed Brown understood his explanation and

decided not to appeal. He also testified the appellate waiver was not new to Brown

because Counsel explained it to him before he pled guilty. Counsel unequivocally denied

Brown’s claim that their conversation ended with Brown directing him to file a notice of

appeal. Counsel stated the conversation ended with Brown understanding an appeal

would not move his position forward. Counsel confirmed that he and Brown never

discussed an appeal in their later communications.

3 Before Counsel testified and after consulting with his attorney, Brown waived attorney-

client privilege with Counsel.

4 For instance, Brown’s ten-year sentence was far below the calculated guidelines range

and the statutory maximum penalty, and, for obvious reasons, was not a cruel and

unusual punishment under the Eighth Amendment.

Counsel’s testimony did not end there. He also explained that appellate waivers

are standard clauses in plea agreements. It is his routine to be clear with defendants—

including Brown—who plead guilty about the appellate waiver and its effects. Counsel

also clarified that he would not have resisted filing a notice of appeal if Brown wanted to

do so over his advice and appellate waiver.

On Counsel’s letter to Brown dated July 22, 2015, the first paragraph reads:

“Enclosed is a copy of the Judgment in your case that was filed on July 6, 2015. As

discussed, you do not wish to appeal your sentence and I agree with your decision.” (Gov.

Ex. 1 (emphasis in original)). The letter was sent by regular mail to 13539 Gragston

Circle, Tampa, Florida 33613, and Counsel said the letter was never returned as

undeliverable. Counsel also testified that if Brown wanted to appeal then the letter would

not have said otherwise.

After considering the evidence and observing the witnesses, the Court credits the

testimony and letter of Counsel over Brown. Other than Brown’s say so, he provided no

evidence he told Counsel to file an appeal. And his actions after talking to Counsel

confirm that he was no longer interested in appealing. For example, Brown admitted that

he never again talked about an appeal with Counsel in their subsequent conversations.

Nor did Brown ever follow up with Counsel about the status of an appeal.

Counsel’s letter to Brown also corroborates his testimony. Counsel wrote the letter

two weeks after talking with Brown. It memorializes Brown’s ultimate decision not to

appeal, explains the case ended, and says Counsel would no longer represent Brown.

(Gov. Ex. 1). The letter put Brown on notice that Counsel would not file an appeal. And

Brown did not tell Counsel that he disagreed with this course.

At the hearing, Brown argued that he did not receive the letter because the address

listed included no apartment number. The Court is not persuaded. The letter’s address

is identical to the address in Brown’s PSR—which he did not challenge. (Pet. Ex. 7 at 2).

All the same, it is not material whether Brown received the letter. The letter is important

because Counsel wrote it two weeks after talking to Brown and it memorializes Brown’s

decision not to appeal. If Brown told Counsel to file a notice of appeal, the letter would

have been nonsensical.

The record shows that Brown had an interest in an appeal and asked Counsel

about filing one. But the record also shows that Counsel consulted with Brown about the

advantages and disadvantages of an appeal. And Brown understood the explanation and

ultimately decided not to appeal. Brown has produced no persuasive evidence that

Counsel instead ignored his wishes. See Devine v. United States, 520 F.3d 1286, 1289

(11th Cir. 2008) (finding the petitioner did not reasonably demonstrate to counsel that he

was interested in appealing); Bryson v. United States, No. 6:15-cv-2046-ORL-31KRS,

2017 WL 3530366, at *3 (M.D. Fla. Aug. 16, 2017) (finding counsel was not

constitutionally ineffective for failing to file an appeal when it was clear that counsel

consulted with petitioner about an appeal). At bottom, Brown’s last words to Counsel was

not a directive to file a notice of appeal. Because Brown did not specifically request

Counsel to file a notice of appeal, Counsel had no constitutional duty to do so. The Court

thus denies Ground One.

B. Ground Two

Brown next claims Counsel was ineffective for not challenging his prior drug

convictions as predicate offenses for the career offender status, and not requesting a two-

level reduction under 18 U.S.C. § 3582(c)(2). The record refutes both arguments.

1. Career offender status

Brown asserts that his prior Florida drug convictions cannot serve as predicate

offenses for career offender status under U.S.S.G. § 4B1.1. That guideline says,

[a] defendant is a career offender if (1) the defendant was at

least eighteen years old at the time the defendant committed

the instant offense of conviction; (2) the instant offense of

conviction is a felony that is . . . a controlled substance

offense; and (3) the defendant has at least two prior felony

convictions of . . . a controlled substance offense.

U.S.S.G. § 4B1.1(a). The Guidelines define “controlled substance offense” to mean

an offense under federal or state law, punishable by

imprisonment for a term exceeding one year, that prohibits the

manufacture, import, export, distribution, or dispensing of a

controlled substance (or a counterfeit substance) or the

possession of a controlled substance (or a counterfeit

substance) with the intent to manufacture, import, export,

distribute, or dispense.

U.S.S.G. § 4B1.2(b).

Brown was found to be a career offender because of three felony convictions for

delivery of cocaine and possessing cocaine with intent to deliver within 1,000 feet of a

school in violation of Florida Statute § 893.13(1).5 (Cr-Doc. 39 at ¶¶ 32, 42-43, 46). He

5 Florida Statute § 893.13(1)(a) says “a person may not sell, manufacture, or deliver, or

possess with intent to sell, manufacture, or deliver, a controlled substance.” Subsection

(c)—which relates to schools—provides “a person may not sell, manufacture, or deliver,

or possess with intent to sell, manufacture, or deliver, a controlled substance in, on, or

within 1,000 feet of the real property comprising . . . a public or private elementary, middle,

or secondary school.” Fla. Stat. § 893.13(1)(c).

argues these convictions are not controlled substance offenses under binding precedent.

(Doc. 2 at 6; Doc. 11 at 1-2). He also asserts his convictions “violated his Fourteenth

Amendment right to due process and equal protection of the law, his Sixth Amendment

rights to the indivisible element clause and divisible element clause, for which the State

of Florida has no ‘mens rea’ to illicit nature of the substance.” (Doc. 2 at 2). From there,

he “requests remand of his unconstitutional sentence.” (Doc. 2 at 2).

The Government responds that Brown’s challenge is procedurally defaulted and

non-cognizable. For the merits, it argues Brown confuses principles associated with the

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), with the career offender

guideline. (Doc. 9 at 6-7). The Court agrees with the Government.

Brown’s challenge to his Guidelines calculation is not cognizable on collateral

review. “Section 2255 does not provide a remedy for every alleged error in conviction

and sentencing.” Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014) (en

banc). An “error of law does not provide a basis for collateral attack unless the claimed

error constituted a fundamental defect which inherently results in a miscarriage of justice.”

United States v. Addonizio, 442 U.S. 178, 185 (1979) (quotation marks omitted). “An

alleged misapplication of the advisory Sentencing Guidelines—such as an erroneous

designation of a defendant as a career offender—is not a fundamental defect that

inherently results in a complete miscarriage of justice.” Ford v. United States, No. 2018

WL 7018045, at *1 (11th Cir. Feb. 21, 2018) (citation omitted); Spencer, 773 F.3d at 1138-

40 (“A misapplication of advisory sentencing guidelines . . . does not violate an ‘ancient’

right, nor does it raise constitutional concerns.”). A petitioner shows a fundamental defect

with proof “that he is either actually innocent of his crime or that a prior conviction used

to enhance his sentence has been vacated[.]” Spencer, 773 F.3d at 1139. Neither

exception applies here. See Ford, 2018 WL 7018045, at *1; Grice v. United States, No.

3:15-CR-33-J-32JBT, 2019 WL 3944322, at *3-4 (M.D. Fla. Aug. 21, 2019). Brown does

not claim to be innocent of the crime he pleaded guilty to. Nor have the prior convictions

that led to his career-offender designation been vacated. And Brown’s ten-year sentence

did not exceed the forty-year statutory maximum.

To the extent that Brown argues Counsel was ineffective for not challenging his

prior convictions as predicate offenses, the argument fails the Strickland test. The

Eleventh Circuit has held that convictions under Florida Statute § 893.13 are controlled

substance offenses for career offender status. See United States v. Jimerson, 749 F.

App’x 950, 951 (11th Cir. 2019); United States v. Pridegon, 853 F.3d 1192, 1198 (11th

Cir. 2017); United States v. Smith, 775 F.3d 1262 (11th Cir. 2014). Counsel thus did not

perform deficiently in failing to raise a meritless argument.

Brown also relies on cases about the ACCA and an unrelated Florida law. For

example, Brown cites United States v. Shannon, 631 F.3d 1187 (11th Cir. 2011) to argue

the record does not establish that he committed the prior drug convictions. But Shannon

differs. There, the Eleventh Circuit held a conviction for buying drugs under a different

Florida law did not qualify as a controlled substance offense. 631 F.3d at 1189-90. The

purchase of cocaine is not at issue here—delivery of cocaine is. (Cr-Doc. 39 at ¶ 46).

What Brown misses is that Counsel took another strategy to advocate for him. He

moved for a horizontal departure based on his criminal history being overrepresented and

a variance under 21 U.S.C. § 3553(a). This strategy worked because the Court granted

both the departure and variance. Brown received years off his sentence because of

Counsel’s argument. The Court thus denies Brown’s argument that counsel should have

argued against his designation as a career offender.6

2. Two-point reduction under 18 U.S.C. § 3582(c)(2)

As best the Court can tell, Brown also argues that Counsel was ineffective for not

seeking a reduction under 18 U.S.C. § 3582(c)(2). Under that law, a court may modify a

defendant’s term of imprisonment if the defendant was sentenced based on a sentencing

range the Sentencing Commission lowered. Id.

About eight months before Brown’s sentencing, the Sentencing Commission

passed Amendment 782 that retroactively reduced the offense levels in U.S.S.G.

§ 2D1.1’s drug quantity table. Because the Court sentenced Brown under the Guidelines

that incorporated Amendment 782’s changes, he cannot argue Counsel was deficient for

not seeking a reduction on that basis. The Court also calculated his guidelines range

based on Brown’s career offender status—not the drug quantity table. This distinction

matters because Amendment 782 only reduced offense levels for drug sentences

calculated under the drug quantity table. It did not affect the career offender provisions.

Counsel thus had no basis to raise the objections Brown now argues. And relatedly, even

6 Brown makes a passing reference that he was unconstitutionally sentenced for three

kilograms of cocaine when he only admitted to 1.5 kilograms. (Doc. 2 at 10-11). This

argument is procedurally defaulted and misguided. In the plea agreement, Brown

admitted to having over 500 grams or more of cocaine. (Cr-Doc. 39 at ¶ 23). And at his

change of plea hearing, Brown again admitted to possessing the cocaine: “Cocaine was

in the car. I knew it was there. It was 500 grams or more, and it was intended for

distribution.” (Cr-Doc. at 81 17:18-22). And the PSR—which Brown did not object to—

attributed about 2,988 grams of cocaine to him. (Cr-Doc. 39 at ¶¶ 19, 26). This argument

does not warrant relief.

if Counsel should have done so, Brown suffered no prejudice.7 The Court, therefore,

denies Brown’s motion on Ground Two.

Accordingly, it is now

ORDERED:

(1) Petitioner Markeith Brown’s Motion Under 28 U.S.C. § 2255 To Vacate, Set

Aside, or Correct a Sentence by a Person in Federal Custody (Doc. 1; Cr-Doc.

57) is DENIED.

(2) The Clerk is DIRECTED to enter judgment, terminate any pending motions,

and close the file.

(3) The Clerk is DIRECTED to file a copy of this Opinion and Order in the related

criminal case.

DENIAL OF BOTH CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN

FORMA PAUPERIS DENIED

IT IS FURTHER ORDERED that Brown is not entitled to a certificate of

appealability (“COA”). A prisoner moving under § 2255 has no absolute entitlement to

appeal a district court’s denial of his motion to vacate. 28 U.S.C. § 2253(c)(1); Harbison

v. Bell, 556 U.S. 180, 184 (2009). Rather, the court must first issue a COA. Section

2253(c)(2) permits a court to issue a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To merit a COA,

the petitioner “must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.

274, 282 (2004), or that “the issues presented were adequate to deserve encouragement

7 Brown cannot be surprised by this outcome because the Court denied his motion to

reduce his sentencing under Amendment 782 in the criminal case. (Cr-Doc. 73).

to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (citations omitted).

Upon review of the record, the Court finds that Brown has not made the requisite showing

in these circumstances. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-

84 (2000). And because he may not have a COA, he may not appeal in forma pauperis.

DONE and ORDERED in Fort Myers, Florida on this 9th day of September 2019.

,

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record