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United States v. Brown

United States District Court, E.D. Kentucky, Central Division, Lexington

July 17, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
MARK EDMOND BROWN, JR., Defendant/Petitioner. Civil Action No. 5:14-7341-KKC-CJS

          OPINION & ORDER

          KAREN K. CALDWELL, CHIEF JUDGE.

         This matter is before the Court on the motion of defendant Mark Edmond Brown, Jr., to vacate, set aside, or correct his federal sentence. (DE 886).

         For the following reasons, the report and recommendation issued by United States Magistrate Judge Candace J. Smith (DE 1208) on Brown's motion is ADOPTED, Brown's motion under 28 U.S.C. § 2255 (DE 886) is DENIED, and no certificate of appealability will be issued.

         I. Background

         Magistrate Judge Smith's report and recommendation more fully details the facts of this case, and that rendition is hereby incorporated by reference. (DE 1208). The following timeline will suffice for purposes of this opinion.

         Brown was indicted by a federal grand jury on multiple counts in August 2012. (DE 20). Several superseding indictments followed. (DE 179; DE 337; DE 472). On April 5, 2013, Brown pled guilty to a lesser included offense set forth in Count 2 of the fourth superseding indictment (DE 472): that is, one count of conspiracy to distribute 500 grams or more of cocaine but less than five kilograms. (DE 569; DE 728).

         As part of his plea agreement with the United States, Brown waived his right to appeal and to collaterally attack his guilty plea, conviction, and sentence. (DE 570, Plea Agreement ¶ 8). However, Brown reserved his right to appeal his sentence if it were greater than 108 months. (DE 570, Plea Agreement ¶ 8). Brown was sentenced to 108 months of imprisonment. (DE 728). At his sentencing hearing, Brown was informed of his right to appeal and that a notice of appeal would need to be filed within fourteen days from the date of the entry of the written judgment. (DE 719). Brown's sentence was later reduced to 87 months of imprisonment. (DE 1084).

         II. Discussion

         Under 28 U.S.C. § 2255, “[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.”

         To prevail on a § 2255 motion alleging constitutional error, a defendant “must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999). A defendant may prevail on a § 2255 motion alleging a non-constitutional error by establishing “a fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process.” Id. (internal quotation marks omitted).

         In his motion, Brown asserts three grounds for relief. First, Brown argues that he was denied the effective assistance of counsel by several actions of his trial counsel, R. Tucker Richardson, III. Here, Brown contends that Richardson failed to conduct an independent investigation into the evidence and witnesses, failed to review discovery materials with Brown, advised Brown to enter a false guilty plea to an alleged drug conspiracy that the evidence did not support, and relayed improper threats from the prosecutor to Brown that his mother would be indicted if he did not plead guilty. The Court will refer to these assertions as “Ground One.”

         Second, Brown argues that he was denied the effective assistance of counsel by Richardson's failure to file a notice of appeal despite being told to do so by Brown. The Court will refer to this assertion as “Ground Two.”

         Third, Brown argues that he was denied due process and the effective assistance of counsel where the prosecutor and Richardson deliberately violated Brown's right to a speedy trial while attempting to coerce Brown into pleading guilty to avoid a jury trial. The Court will refer to this assertion as “Ground Three.”

         The United States responded to the issues raised in Brown's motion (DE 929; DE 964), and Magistrate Judge Smith held an evidentiary hearing on Ground Two (DE 1066).

         In a fifty-eight page report and recommendation, Magistrate Judge Smith recommended that Brown's motion be denied and that no certificate of appealability be issued. (DE 1208). Magistrate Judge Smith directed Brown's appointed counsel, Richard Melville, to file objections on Brown's behalf concerning Ground Two. Brown was permitted to file pro se objections to any other finding or recommendation by Magistrate Judge Smith.

         Melville filed objections for Brown on Ground Two. (DE 1211). Brown also filed his “Opposition and Objections to U.S. Magistrate Report and Recommendation.” (DE 1213). However, Brown's pro se objections are largely incomprehensible. Although the Court is to construe pro se filings liberally, this duty does not require the Court to make Brown's arguments for him. See United States v. Smith, Civil No. 09-7099-DLB-CJS, Criminal No. 06-cr-84-DLB-CJS, 2010 WL 5391538, at *1 (E.D. Ky. Dec. 21, 2010). The Court will review de novo the issues to which discernable objections have been made.

         However, to the extent no specific written objections to Magistrate Judge Smith's report and recommendation (DE 1208) have been made, the reasoning and conclusions contained therein will be adopted by the Court.

         Brown primarily argues that Richardson provided ineffective assistance of counsel. Such claims are governed by the Sixth Amendment, which states in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.” U.S. Const. amend. VI. A defendant who claims that he was denied effective assistance of counsel in violation of the Sixth Amendment must show two components. Strickland v. Washington, 466 U.S. 668, 687 (1984).

         “First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. “Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. A defendant must make both showings, for otherwise, “it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Id. In the context of a guilty plea, “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.” Campbell v. United States, 686 F.3d 353, 357 (6th Cir. 2012) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

         a. Objections relating to Ground One

         i. ...


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