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Brock-Miller v. United States

United States Court of Appeals, Seventh Circuit

April 3, 2018

LeeAnn Brock-Miller, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

          Argued January 5, 2018

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:15-cv-01646-SEB-TAB- Sarah Evans Barker, Judge.

          Before Kanne, Rovner, and Hamilton, Circuit Judges.

          ROVNER, CIRCUIT JUDGE.

         LeeAnn Brock-Miller pled guilty, pursuant to a plea agreement, to one count of conspiracy to possess with intent to distribute heroin. She received the agreed-upon sentence of ten years' imprisonment and eight years of supervised release. She then brought a timely motion under 28 U.S.C. § 2255 to challenge her conviction, asserting ineffective assistance of counsel during plea negotiations. The district court declined to hold a hearing, concluded that counsel's performance was not deficient and denied the motion. We reverse and remand for a hearing on Brock-Miller's section 2255 motion.

         I.

         Brock-Miller was one of forty defendants charged with various drug crimes in a twenty-six count indictment. Brock-Miller was charged only in Count Six of the August 2012 indictment, with conspiracy to possess with intent to distribute more than one kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i) and 846. According to the indictment, the conspiracy was led by Oscar Perez and Justin Addler, inmates in the Indiana Department of Corrections who used illicit cell phones to oversee the acquisition of large amounts of heroin from a source in Chicago and then facilitate the distribution of that heroin into southern Indiana via couriers. The conspiracy began in approximately June 2011 and continued through August 2012. In the twenty-eight paragraph "Overt Acts" section of Count Six, Brock-Miller[1] is mentioned just once, in paragraph twenty-seven:

On or about July 13, 2012, after a series of telephone calls with JUSTIN ADDLER, BRIAN MOORE, LEEANN BROCK, and JOSHUA MILLER were in possession of $6, 000 of JUSTIN ADDLER'S money, traveling on I-65 to Chicago to obtain a large quantity of heroin. During the trip, MILLER noticed law enforcement agents conducting surveillance and began driving erratically in an attempt to avoid detection. MOORE subsequently threw the $6, 000 out the window of the vehicle.

         At the going rate of $110 per gram, $6, 000 would have purchased approximately fifty-four grams of heroin. Miller and another man subsequently recovered the $6, 000. As Brock-Miller later told the sentencing judge, this car trip was an isolated incident, where she agreed to give the others a ride in exchange for one gram of heroin for herself. Brock-Miller had an extensive criminal history that corroborated her claim that she did not sell drugs but was an addict who simply bought drugs for personal consumption.

         More than a year after the grand jury returned the indictment charging Brock-Miller in Count Six, the government filed an information under 21 U.S.C. § 851(a) indicating that it intended to seek an enhanced penalty that is applicable to persons who commit a drug offense after a prior conviction for a felony drug offense has become final. See also 21 U.S.C. §§ 841(b)(1)(A) and (B) (authorizing recidivist enhancements). For Brock-Miller, this meant that the statutory minimum sentence for the charged drug quantity rose from ten years to twenty years, with the potential maximum remaining at life imprisonment. 21 U.S.C. § 841(b)(1)(A). The prior felony drug offense cited by the government was a 2008 Indiana conviction for "Unlawful Possession of Syringes or Needles, " which the government considered a qualifying felony drug offense under 21 U.S.C. § 802(44).[2]

         Brock-Miller had in fact been convicted in 2008 for possession of syringes in violation of Indiana Code § 16-42-19-18 (2007). At that time, the Indiana law provided:

A person may not possess or have under control with intent to violate this chapter a hypodermic syringe or needle or an instrument adapted for the use of a legend drug by injection in a human being.

         The term "legend drug" referred to prescription drugs, see infra, and did not include controlled substances such as heroin. Brock-Miller's conviction under the 2007 version of the statute was later vacated, as we will discuss below, because the substance she was charged with injecting was heroin, which is not a legend drug and thus her conduct was not covered by the statute. The statute was later amended to include both legend drugs and controlled substances such as heroin, a change in the law that does not affect the outcome here but that helps explain an error in the district court's analysis in this case.

         In any event, Brock-Miller's counsel objected to the section 851 information by contending that Brock-Miller did not have a conviction under Indiana Code § 35-48-4-8.3, which criminalizes the possession of drug paraphernalia. Counsel argued that first time offenses under the paraphernalia statute are considered misdemeanors and so the conviction could not be considered a felony drug offense for the purpose of enhancing the sentence under sections 841(b) and 851.[3] This was a frivolous and misdirected objection, though, for at least two reasons. First, Brock-Miller had never been convicted of possessing drug paraphernalia under section 35-48-4-8.3. And second, the government had not asserted a conviction under section 35-48-4-8.3 for possession of paraphernalia as the basis for the recidivist enhancement; it had cited Brock-Miller's conviction for Unlawful Possession of Syringes or Needles. Although the government did not specify the Indiana statute under which Brock-Miller had been convicted, the section 851 information listed the case number, date of conviction and county in which she was convicted. State records for the conviction indicate that Brock-Miller was charged under Indiana Code § 16-42-19-18, not § 35-48-4-8.3.

         A check of Brock-Miller's record of conviction would have revealed the correct statutory cite, and a proper analysis would have confirmed that Brock-Miller had a meritorious objection to the recidivist enhancement, as we will discuss below. But her lawyer never raised a proper objection to the section 851 information and the district court never ruled on the frivolous objection that was filed. Brock-Miller, believing that she faced a mandatory minimum sentence of twenty years, pled guilty to conspiracy to possess with intent to distribute more than 100 grams of heroin, a smaller amount than was initially charged. She agreed to accept a sentence of ten years' imprisonment and eight years of supervised release, and gave up her right to file a direct appeal or a collateral challenge to her conviction and sentence.

         At the change of plea hearing, there was considerable confusion regarding the sentencing range. The court first stated that the maximum sentence for Count Six was forty years. Counsel for the government interposed that the correct range was "ten to life." The court noted that Brock-Miller's petition to enter a plea of guilty showed a range of five to forty years. The government then agreed that five to forty years was the correct range and the court then repeated to Brock-Miller that the sentencing range was five to forty years. After reviewing the plea agreement itself, the court again asked for clarification because that document showed a sentencing range of ten years to life. Brock-Miller's appointed counsel told the court that her client pled guilty to a lesser amount of heroin than was initially charged and so the range for the lesser included count to which she was pleading was five to forty years. Government counsel agreed again that the sentencing range for the charge to which Brock-Miller was entering a plea was five to forty years. The court then told Brock-Miller that her sentencing range would have been ten years to life for the crime initially charged but that her plea agreement reduced the range to five to forty years. That was incorrect. For the kilogram quantity of heroin initially charged, the sentencing range was ten years to life without the recidivist enhancement and twenty years to life with the enhancement. For the reduced amount of heroin to which Brock-Miller pled guilty, the sentencing range was five to forty years without the recidivist enhancement and ten years to life when the enhancement was included. At sentencing, the court noted for the first time that the plea agreement provided for a binding sentence of ten years, and that the correct statutory range for the lesser amount of heroin, together with the enhancement under sections 841(b) and 851, was ten years to life.[4] The court also gave Brock-Miller an eight-year term of supervised release to follow the ten-year term of imprisonment.

         After sentencing, Brock-Miller filed and then quickly withdrew a timely pro se notice of appeal. She then filed a timely pro se motion for collateral relief under 28 U.S.C. § 2255. She alleged ineffective assistance of counsel in violation of the Sixth Amendment, and a denial of due process in violation of the Fifth Amendment. She dropped the latter claim on appeal and so we focus on her ineffective assistance claim only. In that claim, she alleged that her appointed counsel filed a frivolous objection to the government's section 851 filing, and made erroneous factual assertions in the objection. Brock-Miller asserted that she informed her lawyer of the error, but counsel failed to investigate or correct the error, and failed to seek a hearing on the objection. Brock-Miller also alleged that her lawyer inappropriately advised her to enter into a plea agreement that allowed her to be sentenced as a recidivist, without any proper objection to that enhancement and without seeking any determination by the court regarding whether the recidivist provision actually applied to her. Finally, Brock-Miller contended that her lawyer made the same error regarding the sentencing enhancement in objecting to the pre-sentence investigation report ("PSR"). Because the objections as filed were frivolous, Brock-Miller contended that the court overlooked the objections and failed to hold the necessary hearing to rule on the objections. Brock-Miller sought new counsel and a new sentencing hearing that included a ruling on whether the recidivist provision applied to her, as well as any other available relief.

         The district court denied Brock-Miller's section 2255 motion. The court first correctly noted that Brock-Miller's plea agreement included a waiver of the right to seek collateral relief, but that such waivers would not be upheld and enforced if, among other things, the defendant claimed ineffective assistance of counsel in relation to the negotiation of the plea agreement. Brock-Miller claimed that her conviction for unlawful possession of syringes was not a felony drug offense for purposes of the recidivist enhancement, the court noted. In analyzing Brock-Miller's claim, the court examined Indiana Code § 16-42-19-18, the correct statute for her predicate conviction. Unfortunately, though, the court cited the later-revised version which prohibits possession of "a hypodermic syringe or needle or an instrument adapted for the use of a controlled substance or legend drug by injection in a human being." Indiana Code 16-42-19-18 (2015) (emphasis added). The version in effect at the time of Brock-Miller's conviction made no mention of controlled substances. Unaware of the intervening amendment to the law, the district court held that a conviction under that statute would meet the definition of a felony drug offense under 21 U.S.C. § 802(44), which would then fall within the scope of the recidivist enhancement. Based on that analysis of the wrong version of the Indiana law, the court concluded that counsel's performance was not deficient, that Brock-Miller had knowingly and voluntarily entered into her plea agreement, and that the court would therefore uphold the waiver provision in the plea agreement. The court denied the motion for relief under section 2255 and also denied a certificate of appealability. But this court found that Brock-Miller made a substantial showing that her guilty plea was not knowing and voluntary and that she did not receive effective assistance of counsel. We therefore granted a certificate of appealability and appointed counsel to represent Brock-Miller on appeal.

         II.

         Brock-Miller raises two primary issues on appeal. First, she contends that her conviction under the 2007 version of the Indiana Legend Drug Act does not qualify as a felony drug offense under 21 U.S.C. § 802(44) because the Indiana law at the time of her conviction regulated only prescription drugs and thus did not prohibit or restrict conduct related to a controlled substance. The district court erred both factually and legally, she asserts, in concluding to the contrary. Second, she argues that her appointed lawyer was ineffective in plea negotiations when she did not properly object to the section 851 information and instead coerced Brock-Miller into entering a binding ten-year sentencing agreement to avoid risking an improperly-enhanced recidivist sentence after trial. Although she maintains that she has ...


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