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United States v. Brown

United States District Court, Seventh Circuit

November 7, 2013

UNITED STATES OF AMERICA,
v.
WILLIE BROWN

MEMORANDUM OPINION AND ORDER

VIRGINIA M. KENDALL, District Judge.

Petitioner Willie Brown, proceeding pro se, moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Brown claims that his trial counsel was ineffective because she failed to investigate facts concerning a search warrant, failed to prevent the government from using conduct detailed in a plea agreement as grounds for a sentence enhancement, and failed to challenge this Court's conclusion that Brown was an armed career criminal. Brown also claims that his appellate counsel was ineffective because he did not appeal the district court's denial of Brown's motion to suppress evidence obtained pursuant to a search warrant. This Court denies Brown's petition for the reasons stated herein.

BACKGROUND

On July 14, 2010, a federal grand jury returned a three-count indictment against Brown charging him with: (1) being a felon in possession of a firearm in violation of Title 18, United States Code, Sections 922(g)(1) and 924(e)(1) (Count I); (2) possession of heroin with intent to distribute in violation of Title 21, United States Code, Section 841(a) (Count II); and (3) possession of a firearm in furtherance of a drug trafficking crime in violation of Title 18, United States Code, Section 924(c)(1)(A) (Count III). (Dkt. No. 1.)[1] According to Chicago Police Officer Edward Sullins, police officers arrested an individual for selling narcotics on February 25, 2010. (12 C 8076, Dkt. No. 4 at 29, "Brown Memorandum.") This individual became an informant. ( Id. ) This informant identified Brown as his supplier and provided police officers with Brown's address. ( Id. ) Police officers used this information to obtain a warrant to search Brown's residence. ( Id. ) Police officers found heroin and firearms in Brown's residence and arrested Brown. ( Id. at 30.)

Brown's trial counsel moved to suppress the evidence obtained from the search of Brown's residence. (Dkt. No. 12.) Defense Counsel argued that the facts used to establish probable cause were unreliable because police officers did not establish the reliability of their informant. ( Id. at 3-4.) Defense Counsel also argued that police officers did not act in good faith in relying on the search warrant because a reasonable officer would have known that the affidavit used to obtain the search warrant failed to establish probable cause. ( Id. at 4-5.) The government opposed Brown's motion to suppress.

In a written opinion after full briefing, this Court denied Brown's motion to suppress because the informant had recently been to Brown's residence, police officers corroborated the informant's identification of Brown and Brown's residence, and the judge who issued the search warrant met the informant and had the opportunity to assess the informant's credibility. (Dkt. No. 25 at 4-5.) This Court also determined that the search warrant contained a minimum indicia of illegal drug activity at Brown's residence such that a reasonable officer could have believed that probable cause existed. ( Id. at 6-7.)

On March 11, 2011, represented by counsel and after reviewing a written plea agreement, Brown entered a plea of guilty as to Count I. (Dkt. No. 59.) The plea agreement set forth the factual bases for Brown's offense. ( Id. ¶ 6.) The plea agreement also states that Brown stipulates to the possession of heroin in his apartment with the intent to distribute it "for the purposes of computing his sentence under Guideline §1B1.2." ( Id. ¶ 7.) The plea agreement further states that the mandatory minimum sentence for Brown's offense is fifteen years if "the Court determines that defendant is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) and is an Armed Career Criminal within the meaning of Guideline § 4B1.4." ( Id. ¶ 8.a.) Although he entered a plea of guilty, Brown reserved the right to appeal this Court's denial of his motion to suppress. ( Id. ¶ 20.)

Before accepting Brown's plea of guilty, this Court held a change of plea hearing during which this Court determined that Brown's plea was voluntary and did not result from force, threats, or promises not contained in the plea agreement. (Dkt. No. 94.) After placing Brown under oath, this Court determined that Brown was competent to enter a plea of guilty based on Brown's answers to a series of questions asked by this Court. ( See id. at 6:24-7:1.) This Court accepted Brown's plea of guilty. ( Id. at 24:1-7.)

On September 12, 2011, this Court sentenced Brown to 180 months in prison. (Dkt. No. 77 at 2.) During the sentencing hearing, the government identified at least three previous convictions for serious drug offenses committed on different occasions by Brown. ( See Dkt. No. 95 at 7:14-19.) Defense Counsel conceded at sentencing that two of Brown's prior convictions qualified as serious drug offenses. (Dkt. No. 69 at 1). But Defense Counsel argued that one of Brown's prior convictions, a 1991 delivery conviction, did not qualify as a serious drug offense because the narrative for that offense did not indicate why the State of Illinois deemed the offense a Class X felony. ( See id. at 2-3 and Dkt. No. 95 at 8:3-11:12.) According to Defense Counsel, the offense itself-delivery of 0.15 grams of cocaine- was not a serious drug offense because it did not qualify as a Class X felony punishable by at least ten years in prison. (Dkt. No. 69 at 3.) Defense Counsel argued that something other than the offense itself, such as Brown's prior criminal history, rendered the offense a Class X felony. ( Id. ) Defense Counsel also argued that none of Brown's remaining offenses qualified as serious drug offenses. ( Id. at 3-4.) Based on the evidence presented, however, this Court determined that Brown qualified as an armed career criminal because he committed more than three serious drug offenses. (Dkt. No. 95 at 25:4-18.) In fact, this Court found that Brown spent his entire adult life committing crimes involving drugs and weapons. As a result, this Court sentenced Brown as an armed career criminal. ( See id. )

Brown filed a notice of appeal on September 18, 2011. (Dkt. No. 74.) The United States Court of Appeals for the Seventh Circuit appointed counsel on appeal for Brown. (Dkt. No. 89.) Appellate Counsel concluded that Brown's appeal was frivolous and asked to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967). (Dkt. No. 101 at 2.) The Seventh Circuit granted Appellate Counsel's request and explained that: (1) Brown did not want his guilty plea set aside unless this Court's ruling on his motion to suppress was also set aside; (2) a challenge to this Court's ruling on Brown's motion to suppress would have been frivolous; and (3) a challenge to this Court's finding that Brown was an armed career criminal would have been frivolous. ( Id. at 2-3)

STANDARD OF REVIEW

A federal prisoner may move the court that imposed a sentence to vacate, set aside, or correct that sentence on the grounds that the court imposed the sentence in violation of the Constitution or laws of the United States, the court lacked jurisdiction to impose the sentence, the sentence exceeded that permitted by law, or the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. "Relief under § 2255 is an extraordinary remedy because it asks the district court to essentially reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). A district court may dismiss a petition under § 2255 at an early stage-and without an evidentiary hearing-if the record before the court shows that the petitioner is not entitled to relief. Id.

The Sixth Amendment provides criminal defendants with the right to effective counsel. Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011). To prevail on an ineffective assistance of counsel claim, a petitioner must show that his counsel's performance was deficient and that the deficient performance prejudiced his defense. United States v. Lathrop, 634 F.3d 931, 937 (7th Cir. 2011). Courts presume that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. (quoting Strickland v. Washington, 466 U.S. 668, 690 (1984)). To rebut this presumption, a petitioner must show that his counsel's performance fell ...


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