Brown v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

IKE BROWN, JR., )

)

Petitioner, )

)

v. ) Case No. 19-cv-3210

)

UNITED STATES OF AMERICA, )

)

Respondent. )

ORDER AND OPINION

SUE E. MYERSCOUGH, U.S. District Judge:

This cause is before the Court on Petitioner Ike Brown Jr.’s

Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C.

§ 2255 (d/e 1). Mr. Brown alleges he received ineffective assistance

of counsel. For the reasons below, the Court DENIES Mr. Brown’s

§ 2255 Motion (d/e 1) and DECLINES to issue a certificate of

appealability.

I. BACKGROUND

A grand jury in the United States District Court for the Central

District of Illinois charged Mr. Brown with possession with intent to

distribute 50 grams or more of methamphetamine (actual), in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count One); and

possession of a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Two). United States v.

Brown, Central District of Illinois, Springfield Division, Case No. 17-

cr-30020-1 (hereinafter Crim.), Indictment (d/e 6).

On August 16, 2017, Mr. Brown pled guilty to both counts of

the indictment without a written plea agreement. The United States

Probation Office prepared a revised Presentence Investigation

Report (PSR). Crim., PSR (d/e 31). The PSR calculated a total

offense level of 33 and a criminal history category of I, resulting in a

sentencing guideline range of 135 to 168 months’ imprisonment.

PSR ¶79. Mr. Brown faced a statutory minimum sentence of ten

years imprisonment on Count One, see 21 U.S.C. § 841(b)(1)(A), and

a statutory minimum sentence of five years on Count Two, see 18

U.S.C. § 924(c)(1)(A)(i). On December 12, 2017, this Court

sentenced Mr. Brown to 120 months’ imprisonment on Count One,

and 60 months’ imprisonment on Count Two to run concurrently.

Crim., Judgment (d/e 37). Mr. Brown did not appeal.

Mr. Brown filed this Motion to Vacate, Set Aside, or Correct

Sentence Under 28 U.S.C. § 2255 (d/e 1) on December 28, 2018.

See Crim., d/e 43. He argues: (1) that his counsel should have filed

a motion to suppress the evidence obtained from the search of his

home; (2) that Count Two of the indictment did not apply to him

and counsel should have challenged the application of Count Two;

(3) that the Pike County Jail denied his requests to review the

discovery and counsel failed to challenge the process for reviewing

discovery or otherwise provide Mr. Brown with the discovery; and

(4) that his plea was not knowing and voluntary because of his

mental health issues and that he received ineffective assistance of

counsel because counsel did not adequately accommodate Mr.

Brown’s condition. The Government filed its response in opposition

(d/e 23) on May 21, 2021. Mr. Brown has not filed a reply.

II. LEGAL STANDARD

Mr. Brown is proceeding on a motion to vacate, set aside, or

correct his sentence pursuant to 28 U.S.C. § 2255. Relief under

§ 2555 is an extraordinary remedy because a § 2255 petitioner has

already had “an opportunity for full process.” Almonacid v. United

States, 476 F.3d 518, 521 (7th Cir. 2007). Post-conviction relief

under § 2255 is “appropriate for an error of law that is

jurisdictional, constitutional, or constitutes a fundamental defect

which inherently results in a complete miscarriage of justice.”

Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (internal

quotation marks omitted).

Here, Mr. Brown has alleged four errors by his trial counsel

that, he contends, amount to ineffective assistance of counsel. The

Sixth Amendment guarantees criminal defendants effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668,

684-86 (1984). Under Strickland’s familiar two-part test, a

petitioner must show both that his attorney’s performance was

deficient and that he was prejudiced as a result. Vinyard v. United

States, 804 F.3d 1218, 1225 (7th Cir. 2015). Courts, however,

must “indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.”

Strickland, 466 U.S. at 690. A petitioner must also prove that he

has been prejudiced by his counsel’s representation by showing “a

reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Id. at 694.

“When evaluating an ineffective assistance of counsel claim, the

Court should ‘address each specific contention of defective

performance separately. We then turn to the question of prejudice,

which we assess by evaluating the trial as a whole, not one slip at a

time.’” Cook v. Foster, 948 F.3d 896, 901 (7th Cir. 2020); Myers v.

Neal, 975 F.3d 611 (7th Cir. 2020) (“Where, as here, the record

shows more than one instance of deficient performance, the Sixth

Amendment requires that we approach the prejudice inquiry by

focusing on the cumulative effect of trial counsel's shortcomings.”).

However, absent a sufficient showing of both cause and prejudice, a

petitioner’s claim must fail. United States v. Delgado, 936 F.2d

303, 311 (7th Cir. 1991). Therefore, the Court “need not determine

whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged

deficiencies.” Strickland, 466 U.S. at 697 (“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.”).

The Sixth Amendment right to counsel extends to the plea-

bargaining process. Bridges v. United States, 991 F.3d 793, 803

(7th Cir. 2021). “In the plea bargaining context, a reasonably

competent lawyer must attempt to learn all of the relevant facts of

the case, make an estimate of the likely sentence, and communicate

the results of that analysis to the client before allowing the client to

plead guilty.” Brock-Miller v. United States, 887 F.3d 298, 308 (7th

Cir. 2018). Mistakes, nor omissions, in an attorney’s advice do not

necessarily constitute ineffective assistance of counsel. Galbraith v.

United States, 313 F.3d 1001, 1009 (7th Cir. 2002). “[I]n order to

satisfy the ‘prejudice’ requirement, the defendant must show that

there is a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to

trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366 (1970); see

also, Perrone v. United States, 889 F.3d 898, 908 (7th Cir.), cert.

denied, 139 S. Ct. 654 (2018). The defendant must also show that

to reject the plea agreement and go to trial would have been rational

under the circumstances. Padilla v. Kentucky, 559 U.S. 356, 372

(2010); Lee v. United States, 137 S. Ct. 1958, 1968 (2017). “Courts

should not upset a plea solely because of post hoc assertions from a

defendant about how he would have pleaded but for his attorney’s

deficiencies. Judges should instead look to contemporaneous

evidence to substantiate a defendant’s expressed preference.” Lee,

137 S. Ct. at 1967.

III. DISCUSSION

A. Counsel was not Ineffective For Failing to File a Motion

to Suppress.

Brown first argues that counsel should have filed a motion to

suppress the evidence obtained from a warrant-based search of his

home. To show that counsel was ineffective for failing to file a

motion to suppress, Mr. Brown must show that “there was both a

reasonable probability that he would have prevailed on the motion

to suppress and a reasonable probability that, if [the evidence] were

suppressed, he would have been acquitted.” Bynum v. Lemmon,

560 F.3d 678, 685 (7th Cir. 2009) (citing Strickland, 466 U.S. at

694); Hicks v. Hepp, 871 F.3d 513, 526 (7th Cir. 2017). Mr.

Brown’s barebones motion has not provided any legal argument as

to why a motion to suppress would have succeeded.

The search of Mr. Brown’s house was done pursuant to a

search warrant that authorized a search for drug evidence. The

Fourth Amendment to the United States Constitution provides, in

relevant part, “[n]o warrants shall issue, but upon probable cause, .

. . and particularly describing the place to be searched, and the

persons or things to be seized.” U.S. Const. amend. IV. “Probable

cause is not a high standard. It simply means there is a reasonable

likelihood evidence of wrongdoing will be found.” United States v.

Schenck, No. 20-2353, 2021 WL 2767321, at *2 (7th Cir. July 2,

2021). A neutral magistrate judge must make the probable cause

determination and must find that there is a “fair probability that

contraband or evidence of a crime will be found in a particular

place.” Illinois v. Gates, 462 U.S. 213, 214, 103 S. Ct. 2317, 2320

(1983). The job of the “reviewing court is simply to ensure that the

magistrate had a substantial basis for concluding that probable

cause existed.” Id. When an affidavit is the only evidence

presented to a judge in support of a search warrant, the validity of

the warrant rests solely on the strength of the affidavit. United

States v. Peck, 317 F.3d 754, 755 (7th Cir. 2003).

Here, the affidavit in support of the search warrant was made

by Officer Tammy Baehr of the Springfield Police Department. See

Gov’t Resp., Exhibit A (d/e 23-1). She stated that, in December

2016, a confidential source told her that Mr. Brown was selling ICE

methamphetamine at his house and that Mr. Brown obtains this

methamphetamine by travelling to Arkansas. As a result of this tip,

Baehr began conducting surveillance at Mr. Brown’s house. On

March 3, 2017, a second confidential source told Baehr that the

individual had seen a black male known as “Spud” sell

methamphetamine, which was confirmed to be Mr. Brown. On

March 19, 2017, the second confidential source told Baehr that Mr.

Brown was going to be conducting a large sale of methamphetamine

to an unknown individual within an hour or so. Baehr promptly

began conducting surveillance and observed Mr. Brown exit his

residence and place several items in the trunk of his vehicle before

driving away. Officers nearby conducted a traffic stop after the

vehicle failed to signal 100 feet prior to turning. The officer smelled

a strong odor of raw cannabis emitting from the vehicle and asked

Mr. Brown to step out. Brown admitted to having cannabis and

pulled out a plastic bag of suspected cannabis. Officer’s then found

approximately 85 grams of methamphetamine on Mr. Brown’s

person. Based on these statements and other evidence in the

affidavit, officers obtained a search warrant for Mr. Brown’s

residence.

The Court finds that the affidavit sufficiently established

probable cause that Mr. Brown was dealing drugs and that evidence

of his drug dealing would be found in his house. The Seventh

Circuit has repeatedly noted that “evidence of drug dealing is likely

to be found where the dealer lives.” United States v. Scott, 731

F.3d 659, 665 (7th Cir. 2013) (citing Singleton, 125 F.3d at 1102);

see also United States v. Burnside, 588 F.3d 511, 519 (7th Cir.

2009); Anderson, 450 F.3d at 303; United States v. Mykytiuk, 402

F.3d 773, 778-779 (7th Cir. 2005); United States v. Reddrick, 90

F.3d 1276, 1281 (7th Cir. 1996); Lamon, 930 F.2d at 1189. Mr.

Brown has not identified any reason why the warrant would not be

valid. Accordingly, Mr. Brown’s has not shown that trial counsel

was ineffective for failing to file a motion to suppress or how the

failure to file a frivolous motion to suppress could have caused him

any prejudice. See Resnick v. United States, No. 20-1221, 2021 WL

3362000, at *5 (7th Cir. Aug. 3, 2021) (“As we have held, counsel

does not need to raise meritless arguments” (citing Long v. United

States, 847 F.3d 916, 920 (7th Cir. 2017)).

B. Counsel Was Not Ineffective for Failing to Challenge

Count Two of Indictment.

Mr. Brown next argues that there was not sufficient evidence

to support a conviction under Count Two of the indictment and that

counsel was, therefore, ineffective for advising and allowing Mr.

Brown to plead guilty to this offense. Count Two of the indictment

charged Mr. Brown with possessing a firearm during and in

furtherance of a drug trafficking crime in violation of 18 U.S.C.

§ 924(c). Under 18 U.S.C. § 924(c) it is a crime to use or carry a

firearm “during and in relation to a crime of violence or drug

trafficking crime.” Mr. Brown has provided no explanation for why

he believes that there was not sufficient evidence that he committed

this offense and the record of the change of plea hearing refutes his

claim.

At the change of plea hearing on August 16, 2017, before

Judge Schanzle-Haskins, the Government summarized the evidence

they would present if the case were to go to trial. In relevant part,

the Government stated that, in the search of Mr. Brown’s residence,

officers found approximately 2500 grams of ice methamphetamine,

“a loaded .40 caliber handgun, digital scale, plastic baggies, and

additional ammunition. All these items were found inside the same

dresser inside the defendant’s room at that residence.” See Gov’t

Resp., Ex. B at p. 21 (d/e 23-2). Further, the Government stated

that “the .40 caliber firearm was possessed in furtherance of that

drug trafficking crime.” Id. Judge Schanzle-Haskins then asked:

THE COURT: And, Mr. Brown, do you agree with the

Government’s summary of what you did, sir?

BROWN: Yes, Sir.

THE COURT: And did you do what the Government says

you did?

BROWN: Sure. Yes, sir.

Id. at p.22.

Accordingly, the Court finds that Mr. Brown admitted at the

change of plea hearing that the Government had evidence that he

had a firearm and that Mr. Brown used that firearm during and in

relation to a drug trafficking crime. The drug trafficking crime in

which Mr. Brown used the firearm was the offense charged in

Count One, which he does not challenge in this motion. The Court

finds that Mr. Brown has not shown that trial counsel’s conduct in

advising him to plead guilty to Count Two was either deficient or

prejudicial. His claim, therefore, is meritless.

C. Mr. Brown Had Adequate Opportunity to Review

Discovery.

Mr. Brown next argues that Pike County Jail denied his

requests to view his discovery electronically and that counsel was

ineffective for not challenging Pike County Jail’s process or

providing another way for him to view his discovery. The record

shows that Mr. Brown’s trial counsel filed a Motion for Electronic

Review of Pretrial Discovery by Defendant in a Correctional Facility,

which the Court granted. See Crim., Motion (d/e 10); Crim., Order

(d/e 16). Pursuant to the Court’s Order, Mr. Brown was allowed to

access his pre-trial discovery on a laptop subject to the procedures

set up at the Pike County Jail. Id. The Government has also

submitted evidence from the Pike County Jail showing that Mr.

Brown did review his electronic discovery on July 19, 2017 for

approximately 16 minutes. See Gov’t Response, Ex. C. (d/e 10-2).

Mr. Brown has not provided any details about what further

requests he made to see his discovery, why they were allegedly

denied, and whether he informed his trial counsel. Moreover, at

Mr. Brown’s change of plea hearing, Mr. Brown told Magistrate

Judge Schanzle-Haskins that he had had sufficient time to discuss

his case with trial counsel and that he was satisfied with trial

counsel’s representation. Gov’t Resp., Ex. B, P.Tr. at p.8 (d/e 23-2).

At sentencing, this Court asked Mr. Brown if he was satisfied with

trial counsel’s representation and, again, Mr. Brown responded that

he was satisfied with trial counsel’s representation. Crim., S. Tr. at

p.4 (d/e 46).

Without even an allegation that counsel knew Mr. Brown was

having trouble reviewing the discovery, the Court finds that Mr.

Brown cannot meet his burden of showing that his counsel’s

conduct was deficient. Moreover, Mr. Brown has made no showing

of how further review of his discovery would have impacted his

decision to plead guilty or otherwise impacted the outcome of this

case. See also Mendoza v. United States, 755 F.3d 821, 832 (7th

Cir. 2014) (denying ineffective assistance of counsel claim based on

failure of counsel to translate all discovery to petitioner’s native

language because there was “no showing of how translating the

discovery or counsel's further review of discovery with Mendoza

would have changed Mendoza's ability to prepare for or participate

in his trial or otherwise would have affected the trial's outcome.”);

United States v. Williams, 616 F.3d 685, 690 (7th Cir. 2010)

(denying ineffective assistance of counsel claim based on failure to

review video evidence with defendant prior to trial because

defendant showed only a “remote possibility” of a different outcome,

and not a “responsible probability”). Accordingly, the Court finds

that this allegation of ineffective assistance of counsel is meritless.

D. Mr. Brown’s Mental Health Issues Were Adequately

Addressed.

Mr. Brown’s final claim is that his guilty plea was not knowing

and voluntary due to his mental health issues and that counsel was

ineffective for failing to have Mr. Brown evaluated and failing to

“adequately accommodate [Mr. Brown’s] condition.” Mr. Brown

provides no further details as to his mental health issues or why it

would have made him unable to knowingly and voluntarily enter a

plea, any allegation that counsel knew of such an impairment, or

any indication of what counsel should have done to “accommodate”

Mr. Brown’s condition.

Nor does the record provide any support for Mr. Brown’s

assertions. At the change of plea hearing, Magistrate Judge

Schanzle-Haskins engaged in the required plea colloquy and

established multiple times that Mr. Brown knew the purposes of the

change of plea hearing and was knowingly and voluntarily

proceeding. Gov’t Resp., Ex. B, P.Tr. at p.5-8 (d/e 23-2). Mr.

Brown informed the Court that he was seeking treatment for mental

health issues, but that this treatment would not prevent him from

understanding what was happening at the hearing. Id. at p. 6. The

Magistrate Judge found that, “[b]ased upon Mr. Brown’s responses

to my questions, my personal observations of him here, and the

representations of the lawyers involved, I find that he’s competent

to understand these proceedings and enter a knowing plea of

guilty.” Id. at p.8.

In advance of sentencing, trial counsel addressed Mr. Brown’s

history of mental-health issues in the sentencing commentary,

memorandum of law, and mitigation report filed on Mr. Brown’s

behalf. Crim., Def. Commentaries (d/e 33, 34). At the sentencing

hearing, trial counsel also raised Mr. Brown’s mental health issues

as part of his mitigation argument. Crim., S.Tr. at p. 11-12 (d/e

46). Accordingly, the record shows that trial counsel was not only

aware of Mr. Browns mental health issues, but counsel also

brought them to the Court’s attention for purposes of mitigation.

Mr. Brown’s barebones conclusory statement that his plea was

not knowing and voluntary due to his mental health issues and that

his counsel was ineffective for failing to address his mental health

issues is insufficient for relief and belied by the record of this case.

Accordingly, this ground for relief is also denied as meritless.

IV. CERTIFICATE OF APPEALABILITY

If Petitioner seeks to appeal this decision, he must first obtain

a certificate of appealability. See 28 U.S.C. § 2253(c) (providing that

an appeal may not be taken to the court of appeals from the final

order in a § 2255 proceeding unless a circuit justice or judge issues

a certificate of appealability). A certificate of appealability may

issue only if Petitioner has made a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Such a

showing is made if “reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in a

different manner.” Slack v. McDaniel, 529 U.S. 473, 484, 120

S. Ct. 1595 (2000). When a federal habeas petition is dismissed on

procedural grounds without reaching the underlying constitutional

claim, the movant must show “that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural

ruling.” Id. The Court does not find that reasonable jurists could

disagree with the Court’s findings that Mr. Brown’s claims are

meritless. Accordingly, the Court declines to issue a certificate of

appealability.

V. CONCLUSION

For the reasons stated above, Petitioner Ike Brown Jr.’s Motion

to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255

(d/e 1) is DENIED. The Court DECLINES to issue a Certificate of

Appealability. This case is CLOSED. The Clerk is DIRECTED to

prepare the Judgment.

ENTER: August 5, 2021

/ s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE