United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION & ORDER
K. CALDWELL, CHIEF JUDGE.
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).
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.
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.
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).
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
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.”
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).
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.”
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.”
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
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).
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.
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.
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.
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).
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)).
Objections relating to Ground One