Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Brown

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

January 13, 2020

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
MARION LEAVES BROWN, III, Defendant/Movant.

          MEMORANDUM OPINION AND ORDER

          DANNY C. REEVES, CHIEF JUDGE

         Defendant/Movant Marion Leaves Brown, III, has filed a motion to vacate, set aside, or correct his sentence under 28');">28 U.S.C. § 2255. [Record No. 69] In support, he asserts claims of ineffective assistance of counsel and prosecutorial misconduct. Brown also has filed a motion to compel discovery and to subpoena cellular records. [Record No. 79] The matter was referred to United States Magistrate Judge Edward B. Atkins for a report and recommendation in accordance with 28');">28 U.S.C. § 636(b). Magistrate Judge Atkins filed his report on December 20, 2019, recommending that Brown's § 2255 be denied. [Record No. 84]

         This Court must make a de novo determination of those portions of the Magistrate Judge's recommendation to which objections are made, 28');">28 U.S.C. § 636(b)(1)(C), but “[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985). Brown has not filed timely objections to Magistrate Judge Atkins' Recommended Disposition. However, the Court has conducted a de novo review of the matter and determined that his motions should be denied.

         I.

         A female identified as B.S. overdosed on drugs on March 29, 2017. [Record No. 28');">28, p. 2');">p. 2] First responders revived her with Narcan. Later drug tests showed that her overdose was caused by ingesting heroin and fentanyl. [Id. at 2-3.] Initially, B.S. advised police that another woman sold her the drugs, but a few days later she admitted that her earlier statement was incorrect and that Brown had provided her the drugs. B.S. later cooperated with the police to record conversations with Brown about arranging another drug purchase. [Record No. 28');">28, p. 4]

         Brown pleaded guilty to distribution of a mixture or substance containing a detectable amount of fentanyl, the use of which resulted in serious bodily injury, in violation of 21 U.S.C. § 841(a)(1) and felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). [Record No. 27] Brown admitted in his plea agreement that he “knowingly and intentionally distributed a mixture or substance containing a detectable amount of fentanyl . . . [and that] the use of the controlled substance distributed by [him] resulted in serious bodily injury to an individual.” [Record No. 28');">28] He waived the right to appeal his guilty plea and conviction and also waived the right to collaterally attack his guilty plea, conviction, and sentence except for claims of ineffective assistance of counsel. [Id.] During his plea colloquy, Brown acknowledged said that he understood the terms of his plea agreement and admitted to supplying B.S. with drugs containing fentanyl, the use of which caused serious bodily injury. [Record No. 38');">38');">38');">38, pp. 28');">28-30]

         Before the sentencing hearing, however, Brown attempted to escape from custody. And one day prior to the sentencing hearing, he attempted to withdraw his guilty plea. Brown's retained attorney, Jerry Wright, advised him against withdrawing his guilty plea. However, Wright notified the Court of the defendant's request and then moved to withdraw as counsel. [Record No. 33] Thereafter, Brown moved to withdraw his guilty plea. That motion, however, was denied. [Record Nos. 40, 43] Brown was later sentenced to a 480-month term of imprisonment, to be followed by a five-year term of supervised release. [Record No. 48] Brown appealed the denial of his motion to withdraw his guilty plea. [Record No. 49] However, the United States Court of Appeals for the Sixth Circuit affirmed this Court's decision to deny the motion. [Record No. 66]

         Brown current motion claims that Wright was ineffective because he failed to investigate whether the alleged drug caused the overdose of the victim, failed to explain the elements of the offense to him, and failed to discuss discovery, which resulted in an involuntary guilty plea. [Record No. 69-1] He also asserts that his counsel was ineffective for erroneously advising him to enter a guilty plea in which he acknowledged that use of the drugs he distributed resulted in serious bodily injury and for failing to investigate his prior convictions. [Id.] Finally, Brown contends that the Assistant United States Attorney assigned to the case engaged in prosecutorial misconduct based on knowledge that the drugs Brown sold to B.S. were not in her system. [Id.] Brown requests that the Court vacate the enhancement for serious bodily injury and sentence him to a lesser-included offense of possession.

         Magistrate Judge Atkins' report recommends that Brown's § 2255 motion should be denied. [Record No. 84] First, he concludes that the waiver contained in Brown's plea agreement precludes any argument of prosecutorial misconduct and sufficiency of the evidence. But even if the waiver provision did not bar the arguments, he concludes that the claims are procedurally defaulted because Brown did not raise them on direct appeal.

         Regarding Brown's ineffective assistance of counsel claim, Magistrate Judge Atkins concludes that Brown failed to show that Wright's failure to investigate led to erroneous advice to enter a guilty plea. He explains that Wright's decision not to seek an additional medical expert did not prejudice him and did not change his decision to plead guilty. Further, Magistrate Judge Atkins concludes that Brown's claims that his attorney did not explain the elements of the offense or review discovery with him are unsupported by the record. Finally, the magistrate judge finds that Brown has failed to demonstrate prejudice because he was not sentenced as a career offender.

         II.

         A movant must allege “an error of constitutional magnitude, a sentence imposed outside the statutory limits, or an error of fact or law that was so fundamental as to render the entire proceeding invalid” to prevail on a § 2255 claim. Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003).

         A. Claimed Prosecutorial Misconduct

         Brown argues that the government should have known that the drugs B.S. ingested were not sold by him. However, that this claim has been waived and procedurally defaulted. In his plea agreement, Brown explicitly waives the right to collaterally attack his sentence for any reason other than for a claim of ineffective assistance of counsel. [Record No. 28');">28] Such waivers are generally enforceable and valid if entered into knowingly, intentionally, and voluntarily. Cox v. United States, 695, Fed.Appx. 851, 853 (6t ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.