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United Statesn v. Brown

United States District Court, D. Maryland

January 18, 2017

UNITED STATES OF AMERICA
v.
ELLIOTT BROWN

          MEMORANDUM AND ORDER DENYING § 2255 MOTION

          Marvin J. Garbis, United States District Judge

         The Court has before it Petitioner's Motion to Vacate, Set Aside, or Correct Sentence [ECF Nos. 299 & 300]. The Court has held a hearing including the presentation of evidence. The Court has made its factual findings based upon its evaluation of the evidence and the reasonable inferences drawn therefrom.

         I. BACKGROUND

         On June 1, 2009, Defendant Elliott Brown (“Petitioner”) was convicted by Judge Quarles on a plea of guilty to one Count of conspiracy to distribute and possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846.

         On June 9, 2009, Petitioner, by trial counsel, [1] filed a Motion to Withdraw Guilty Plea [ECF No. 178] and, on March 12, 2010, filed pro se a supplemental motion seeking to withdraw the guilty plea [ECF No. 250]. On March 17, 2010, Judge Quarles appointed Richard Bardos, Esquire who represented Petitioner through sentencing and appeal. On July 29, 2010, Judge Quarles denied Petitioner leave to withdraw the guilty plea. See Memorandum Opinion [ECF No. 265] filed July 30, 2010.

         At sentencing, on July 29, 2010, Judge Quarles found that Petitioner's Offense Level was 36 and Criminal History Category was VI, yielding a Guidelines Range of 324 to 405 months. Petitioner was sentenced to 360 months of incarceration. Judgement was entered on July 30, 2010. [ECF No. 267].

         On August 3, 2010, Petitioner appealed to the United States Court of Appeals for the Fourth Circuit. [ECF No. 272]. On June 16, 2011, the appellate court issued its Judgment affirming the conviction and sentence. [ECF No. 288]. On September 14, 2011, (90 days after June 16) the time for Petitioner to seek a writ of certiorari expired. Therefore, the deadline for filing a § 2255 motion was September 14, 2012. On that date, Petitioner filed pro se documents deemed to constitute a timely § 2255 motion. [ECF Nos. 299 & 300].

         On May 20, 2014, Judge Quarles appointed Mary Davis, Esquire to represent Petitioner. [ECF No. 341].

         On January 29, 2016, the instant case was reassigned to the undersigned Judge.

         On January 11, 2017, the Court held a hearing on the instant motion.

         II. GROUNDS ASSERTED

         Petitioner asserts that he was denied the effective assistance of counsel due to counsel's failure to:

1. Communicate to him an offer of a plea agreement calling for a 188 month sentence.
2. Adequately represent him in regard to his guilty plea, rendering the plea involuntary.
3. Adequately represent him in regard to the district court's finding that he was a career offender.
4. Adequately represent him in regard to the district court's finding of responsibility for 30 kilograms of heroin.

         A. Ineffective Assistance of Counsel Standard

         In order to prevail on a claim that counsel's representation violated his Sixth Amendment right to effective assistance of counsel, Petitioner must show (1) "that counsel's representation fell below an objective standard of reasonableness, "[2] and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome [of the proceedings]." Id. at 694.

         B. Petitioner's Asserted Grounds

         1. Failure to Communicate Offer

         Petitioner contended that trial counsel failed to communicate to him a Government offer of a plea agreement calling for a 188 month sentence and that, were that offer made, he would have accepted it.

         A criminal defendant is entitled to the effective representation of counsel in regard to plea bargaining.

Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process. During plea negotiations defendants are "entitled to the effective ...

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