Opinion

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 MATTHEW JOSEPH BROWN, Case No. 5:24-cv-02048-AB

Case No. 5:22-cr-00088-AB

11 Petitioner,

12 v.

ORDER DENYING MOTION FOR

13 UNITED STATES OF AMERICA, RELIEF UNDER 28 U.S.C. § 2255

AND DISMISSING ACTION

14 Respondent.

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Petitioner Matthew Joseph Brown (“Brown”), who is incarcerated within the

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Central District of California and proceeding pro se, filed a Motion for Relief from his

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sentence pursuant to 28 U.S.C. § 2255. The United States filed an opposition and

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Brown filed a reply. For the following reasons, Brown’s motion is DENIED.

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I. BACKGROUND

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On November 28, 2022, Brown pled guilty to use of facility of interstate

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commerce to attempt to induce a minor to engage in criminal sexual activity, in

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violation of 18 U.S.C. § 22422(b), and obstruction of justice, in violation of 18 U.S.C.

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§ 1512(c)(1). On June 16, 2023, Brown was sentenced to 210 months’ imprisonment

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and a lifetime of supervised release.

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In his motion for relief under 28 U.S.C. § 2255, Brown contends that his prior

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counsel was ineffective because she neglected to fully advise him of his rights to

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1 appeal his sentence, or file a Notice of Appeal on his behalf. Brown is requesting that

2 he be placed in the position he would have been in but for the violation, which

3 generally includes vacating and re-entering the judgment to allow timely appeal.

4 In support of its opposition, the United States filed the a declaration of Brown’s

5 former counsel Diane C. Bass (“Bass Decl.”), the transcript from Brown’s November

6 28, 2022 guilty plea (“Exhibit A”), and the transcript from the June 16, 2023

7 sentencing (“Exhibit B”). Upon review of this evidence and consideration of the

8 parties’ arguments, the Court concludes that Brown is not entitled to an evidentiary

9 hearing because (1) he has not alleged specific facts which, if true, would entitle him

10 to relief; and (2) the petition, files, and record of the case conclusively show that he is

11 not entitled to relief. 28 U.S.C. § 2255; U.S. v. Howard, 381 F.3d 873, 877 (9th Cir.

12 2004).

13 II. LEGAL STANDARDS

14 A. Section 2255.

15 A petitioner may to move to vacate, set aside, or correct his sentence pursuant

16 to 28 U.S.C. § 2255. Section 2255(a) states:

17 “[A] prisoner in custody under sentence of a court established by an Act

18 of Congress claiming the right to be released upon the ground that the

19 sentence was imposed in violation of the Constitution or laws of the

20 United States, or that the court was without jurisdiction to impose such

21 sentence, or that the sentence was in excess of the maximum authorized

22 by law, or is otherwise subject to collateral attack, may move the court

23 which imposed the sentence to vacate, set aside or correct the sentence.”

24 28 U.S.C. § 2255(a). If any of these reasons exists, the court “shall vacate and set the

25 judgment aside and shall discharge the prisoner or release him or grant a new trial or

26 correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). Moreover, if

27 “the motion and the files and records of the case conclusively show that the prisoner is

28 entitled to no relief,” the motion may be determined by the court without an

1 evidentiary hearing. Id.

2 B. Requirements to Establish Ineffective Assistance of Counsel

3 The Supreme Court has affirmed that individuals have a right to effective

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

5 can deprive a defendant of the right to effective assistance by neglecting to provide

6 “adequate legal assistance.” Id. (citing Cuyler v. Sullivan, 446 U.S., at 344). To

7 demonstrate ineffective assistance of counsel, the defendant must prove that counsel’s

8 performance was deficient, and that the deficient performance prejudiced the defense.

9 Id. at 687. To prove that the deficient performance of counsel prejudiced the defense,

10 the defendant must establish that counsel’s errors were so grave that they deprived the

11 defendant of a fair trial, whose result is reliable. Id. Moreover, the deficient

12 performance of counsel is characterized by counsel committing errors so serious that

13 counsel was not operating as the counsel entitled to the defendant under the Sixth

14 Amendment. Id. The Sixth Amendment requires the following:

15 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and

16 public trial, by an impartial jury of the State and district wherein the crime shall

17 have been committed, which district shall have been previously ascertained by

18 law, and to be informed of the nature and cause of the accusation; to be

19 confronted with the witnesses against him; to have compulsory process for

20 obtaining witnesses in his favor, and to have the Assistance of Counsel for his

21 defence.” USCS Const. Amend. 6.

22 In evaluating whether counsel is ineffective, the performance inquiry is based

23 on whether the counsel’s representation was reasonable based on the circumstances.

24 Strickland, at 688. “When a convicted defendant complains of the ineffectiveness of

25 counsel’s assistance, the defendant must show that counsel’s representation fell below

26 an objective standard of reasonableness.” Id. at 687-88. Counsel is strongly presumed

27 to have provided adequate assistance in rendering reasonable professional judgment.

28 Id. at 690. The standard requires the petitioner to establish “gross incompetence” on

1 the counsel’s part. Kimmelman v. Morrison, 477 U.S. 365, 381 82 (1986). Thus, the

2 standard that the defendant must fulfill is “highly demanding” and “rigorous.” Id.

3 The Supreme Court has held that counsel has a constitutionally imposed duty to

4 consult with the defendant regarding an appeal when there is reason to think either

5 “(1) that a rational defendant would want to appeal (for example, because there are

6 nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably

7 demonstrated to counsel that he was interested in appealing.” Roe v. Flores-Ortega,

8 528 U.S. 470, 480 (2000). Courts are instructed to assess the entirety of the

9 information counsel knew or should have known. Id. The Court explains, “Although

10 not determinative, a highly relevant factor in this inquiry will be whether the

11 conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope

12 of potentially appealable issues and because such a plea may indicate that the

13 defendant seeks an end to judicial proceedings. Even in cases when the defendant

14 pleads guilty, the court must consider such factors as whether the defendant received

15 the sentence bargained for as part of the plea and whether the plea expressly reserved

16 or waived some or all appeal rights.” Id.

17 In situations where the defendant does not instruct counsel to file an appeal nor

18 asks that an appeal be taken, the Court held that there should be an evaluation of

19 whether counsel consulted with defendant regarding an appeal. Id. at 478. “Consult”

20 means informing the defendant of the advantages and disadvantages of filing an

21 appeal and engaging in a reasonable effort to learn of defendant’s desire. Id. Notably,

22 however, “[w]e cannot say, as a constitutional matter, that in every case counsel’s

23 failure to consult with the defendant about an appeal is necessarily unreasonable, and

24 therefore deficient. Such a holding would be inconsistent with both our decision

25 in Strickland and common sense.” Id. at 479. For example, if a sentencing court’s

26 instructions to a defendant regarding his appellate rights are very evident and

27 informative, counsel may reasonably determine that he doesn’t need to repeat said

28 information. Id. at 479-80.

1 III. DISCUSSION

2 A. Brown’s Counsel Meets the Standard for Effective Assistance of

3 Counsel.

4 Counsel is strongly presumed to have provided adequate assistance in rendering

5 reasonable professional judgment. The standard for ineffective legal counsel is

6 extremely high, requiring that the defendant fulfill a “highly demanding” and

7 “rigorous” standard. Kimmelman, 477 U.S. at 381-82. To demonstrate ineffective

8 assistance of counsel, Brown must prove that his counsel’s performance was deficient,

9 and that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687.

10 Here, Brown argues that his counsel performed unreasonably because she failed

11 to properly consult with him regarding his right to appeal. However, in her

12 declaration, attorney Bass states that she advised Brown of his appellate rights, along

13 with advice to plead “open” to retain his right to appeal the application of United

14 States Guidelines Section § 4B1.5. (Decl. Bass at 10:20-24.) Moreover, on at least one

15 subsequent occasion, when visiting him at West Valley Detention Center, Bass further

16 discussed the appellate issue with Brown. (Decl. Bass at 11:12-15.) At the change of

17 plea hearing, Bass even explicitly corrected the Court to ensure it was understood that

18 Brown was not waiving his right to appeal. (Exhibit A at 9-10). Bass advised Brown

19 that if they were unsuccessful in advocating for their position on the sentencing

20 guidelines issue, he would have an appellate issue. (Decl. Bass 11:5-10). Bass advised

21 Brown that if their position was accepted by the Court, he would have no standing to

22 appeal. Id. After the sentencing hearing, Bass told Brown that since they prevailed on

23 the sentencing guidelines issue, there was nothing to appeal. (Decl. Bass at 11:19-21.)

24 Brown also never asked Bass to file a Notice of Appeal on his behalf. (Decl. Bass at

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26 The record, including the transcript of the change of plea hearing, corroborate

27 Bass’s versions of events. Given that the standard of ineffective assistance of counsel

28 is “highly demanding” and “rigorous,” Bass’s actions constitute reasonable assistance

1 of counsel. Bass informed Brown of his appellate rights on various occasions. It is

2 reasonable to expect that Brown should know that he has appellate rights in other

3 areas of his case because Bass explained the concept of appellate rights to him on the

4 sentencing guidelines issue. Bass even made sure to clarify with the Court that her

5 client wished to plead “open,” demonstrating her commitment to her client’s appellate

6 rights. Moreover, Brown never requested that Bass file a Notice of Appeal on his

7 behalf, indicating that after the sentencing Brown did not express an interest in

8 appealing. Furthermore, Bass’s statement to Brown telling him there was no viable

9 issue to appeal does not constitute ineffective assistance of counsel. Bass’s statement

10 falls within the parameters of reasonably effective assistance, given that she provided

11 Brown her professional opinion regarding his case. As such, Bass’s performance was

12 not deficient, nor did it prejudice the defense’s case.

13 B. The Court Sufficiently Informed and Confirmed Brown’s

14 Knowledge of his Right to Appeal During Proceedings

15 Under the standard for effective assistance of counsel, even if counsel does not

16 consult with defendant about an appeal, that does not mean that they provided the

17 defendant deficient assistance. Brown contends that Bass failed to provide him a

18 constitutionally mandated consultation regarding appealing an open guilty plea and

19 that Bass did not inform him that she was required to file a Notice of Appeal if he

20 solicited it, regardless of her opinion on its merit. Here, as discussed above, Bass

21 adequately consulted with Brown about his appellate rights. But, even if Bass did not

22 provide adequate consultation, the Court did. Under Roe v. Flores-Ortega, counsel’s

23 failure to consult with the defendant about an appeal is not necessarily unreasonable.

24 For instance, if a Court provides clear and informative instructions to a defendant

25 about his appeal rights, this can substitute for a counsel’s obligation to consult. Roe v.

26 Flores-Ortega, 528 U.S. 470, 479-80 (2000). “We therefore reject a bright-line rule

27 that counsel must always consult with the defendant regarding an appeal.” Id. at 480.

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1 This case is analogous to Flores-Ortega. This Court provided various clear and

2 informative instructions to Brown regarding his appellate rights, ensuring his

3 comprehensive understanding of his rights. The Court explicitly asked Brown if he

4 understood and had reviewed his appellate rights. During the guilty plea, the Court

5 stated, “Lastly, if you were to be convicted in this case and sentenced, you would have

6 the right to appeal that conviction and sentence. Have you and Ms. Bass gone over all

7 of those rights, sir?” (Exhibit A, 22:8-12). In response, Brown affirmed, “Yes, your

8 Honor.” (Exhibit A, 22:13). The Court then asked, “And do you believe you

9 understand all of those rights?” (Exhibit A, 22:14-15). In response, Brown said he

10 understood these rights and did not have any questions about them. (Exhibit A, 22:14-

11 19). This interaction demonstrates that Brown unequivocally affirmed his

12 understanding of his appellate rights, confirming that he did not have any questions.

13 Brown’s current position, which posits that he did not have a clear understanding of

14 his rights, contradicts his statements during his change of plea hearing. Brown further

15 confirmed his understanding of his right to appeal his sentence and conviction. The

16 Court asserted, “You would have an absolute right to appeal your sentence and, I

17 guess, you would have a right to appeal your conviction even though you are pleading

18 guilty. Do you understand that?” (Exhibit A, 23:8-11.) Brown confirmed his

19 understanding. (Exhibit A, 23:12.) Brown’s statements during this proceeding indicate

20 his unmistakable comprehension about his rights. Thus, in open court, Brown

21 affirmed his knowledge of his rights multiple times.

22 Furthermore, Brown himself even expressed his satisfaction with Bass’s

23 performance as his counsel. The Court asked Brown if he felt satisfied with the work

24 Bass has done for him on the case, if he told her everything he knows about his case,

25 and if he thinks she’s considered all potential defenses he may have to the case.

26 (Exhibit A, 31:1-9.) Brown answered all of these questions affirmatively. Id. During

27 this sentencing, Brown told the Court that he had reviewed the presentence report with

28 Bass and did not need more time to read it over. (Exhibit B, 50:5-22.) This indicates

1 | that his lawyer was proactive with him, ensuring that he understood the presentencing

2 | report. Moreover, this corroborates Brown’s prior statement, where he affirmed his

3 || satisfaction with his counsel’s performance. The Court explicitly ensured that Brown

4 | understood his rights, asking him multiple questions to gage his comprehension.

5 || Brown’s statements to the Court, maintaining his understanding of his appellate rights

6 | and his contentment with his counsel’s assistance, suggest that Brown was, in fact,

7 | knowledgeable of his rights. Thus, the consultation that Bass provided Brown after his

8 || sentencing was reasonable under the circumstances.

9 Brown has not demonstrated that his counsel’s performance was deficient, and

10 | that the deficient performance prejudiced the defense. The counsel that Bass provided

11 | Brown satisfied the Sixth Amendment standard for effective assistance of counsel.

12 | IV. CONCLUSION

13 For these reasons, Brown’s § 2255 motion is DENIED and this action is

14 | DISMISSED.

15 The Court further concludes that Brown has not “made a substantial showing of

16 | the denial of a constitutional right,” so the Court DECLINES to issue a certificate of

17 | appealability. See 28 U.S.C. §§ 2253(c)(2), (c)(3).

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19 IT IS SO ORDERED.

20 f rs

21 | Dated: September 1, 2026 d .

HONORABLE ANDRE BIROTTE JR.

33 UNITED STATES DISTRICT JUDGE

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