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United States v. Brown

United States District Court, D. Nevada

November 19, 2019


          ORDER [ECF NOS. 293 - 296, 303, 306, 307, 310, 311, 313 - 317]


         In 2015, a jury convicted defendant Tracey Brown of Interference with Commerce by Robbery (Hobbs Act robbery), [1] Felon in Possession of a Firearm, [2] and Brandishing a Firearm During a Crime of Violence.[3] I sentenced Brown to 30 years of incarceration as follows: 24 years for the Hobbs Act robbery, a consecutive term of three years for his possession of the firearm, and a further consecutive term of seven years for his brandishing of the firearm. I imposed this sentence to be served concurrent to the state sentence Brown is serving in state custody arising from conduct that is relevant to his federal conviction. Brown appealed his conviction and sentence, and the Ninth Circuit affirmed.

         Brown moves under 28 U.S.C. §2255 to vacate, set aside, or correct his sentence. He has also moved to supplement or amend his §2255 motion, to have counsel appointed, and to be provided all transcripts in both the present matter and the state criminal action.[4] The United States opposes Brown's request for relief from his conviction and sentence. I will grant Brown's motions to amend his §2255 motion and will deny all grounds for relief except for the issue whether he is entitled to relief under United States v. Davis, 139 S.Ct. 2319 (2019). I will not consider the merits of that issue at this time. Rather, I am appointing the Federal Public Defender to represent Brown on that issue so that it can be fully briefed.

         Letter Seeking Permission to File an Appeal from State Court Case (ECF No. 313)

         Before proceeding, I note that Brown has written a letter to the court seeking permission to file an appeal from the decisions rendered in his state court case. Brown cannot appeal the decisions of the state court in this court. The only relief he may seek from this court regarding his state conviction is under 28 U.S.C. §2254. Brown does not need permission from the court to file such a petition. Accordingly, I will construe Brown's letter as requesting that the Clerk of the Court send him the correct forms for filing a motion pursuant to 28 U.S.C. §2254, and I will so direct the Clerk.

         Previously Litigated and Procedurally Defaulted Grounds

         In this collateral review, I must dismiss any claims that Brown litigated in his direct appeal. “When a defendant has raised a claim and has been given a full and fair opportunity to litigate it on direct appeal, that claim may not be used as basis for a subsequent § 2255 petition.” United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000) (citation omitted); see also Olney v. United States, 433 F.2d 161, 162 (9th Cir. 1970) (“Having raised this point unsuccessfully on direct appeal, appellant cannot now seek to relitigate it as part of a petition under § 2255.”). I must also dismiss any claims as to which Brown has procedurally defaulted unless he can demonstrate both cause for and prejudice resulting from that default. A defendant procedurally defaults on any claim that he could have but did not raise in his direct appeal. The general rule is that “claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003).

         Effective Assistance of Counsel

         A criminal defendant is entitled to reasonably effective assistance of counsel. McMann v. Richardson, 377 U.S. 759, 771, n. 14 (1970). The right to effective assistance of counsel is the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. Strickland v. Washington, 466 U.S. 668, 685 (1984). When a true adversarial criminal trial has been conducted, even if defense counsel has made demonstrable errors, the requirements of the Sixth Amendment have been met. United States v. Cronic, 466 U.S. 648, 656 (1984). Counsel is presumed competent. As such, the burden rests on the defendant to establish a constitutional violation. Cronic at 658.

         To obtain reversal of a conviction, a petitioner must prove (1) that counsel's performance was so deficient that it fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defense to such a degree as to deprive the defendant of a fair trial. Strickland, 466 U.S. at 687-88, 692 (1984). To establish deficient performance under Strickland, it must be shown “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. Exercising highly deferential judicial scrutiny, this court inquires “whether counsel's assistance was reasonable considering all the circumstances.” Id. at 688. “Such assessment must be made ‘from counsel's perspective at the time,' so as ‘to eliminate the distorting effects of hindsight.'” Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002) (citing Strickland, 466 U.S. at 689). Prejudice can be presumed only “where there has been an actual breakdown in the adversarial process at trial.” Toomey v. Bunnell, 898 F.2d 741, 744 n. 2 (9th Cir.), cert. denied, 111 S.Ct. 390 (1990). See also Cronic, supra.


         In his first ground for relief, Brown argues that he was illegally indicted because a grand jury witness perjured himself. Regardless of whether Brown can show cause for failing to raise this issue in his direct appeal, he cannot demonstrate prejudice. To show prejudice, Brown must establish that a ground exists sufficient to warrant the dismissal of his indictment subsequent to his conviction by a petite jury. The Ninth Circuit has already determined that Brown's argument that the grand jury was misled by the witness's testimony is insufficient to warrant dismissal of the indictment subsequent to his conviction. Following his conviction, Brown moved to unseal the grand jury transcript, arguing that the grand jury may have relied on “erroneous information” that the witness had provided. I denied that motion. Brown appealed and the Ninth Circuit rejected Brown's argument, stating that he “failed to show that ‘a ground may exist to dismiss the indictment,' because ‘even if the grand jury might have been misled . . . the existence of probable cause [wa]s not in doubt, after Brown was convicted beyond a reasonable doubt. United States v. Caruto, 663 F.3d 394, 402 (9th Cir. 2011).” As Brown's present ground for relief rests upon the same theory that the Ninth Circuit rejected, he cannot establish prejudice for failing to raise this specific ground in his direct appeal.

         In his second ground for relief, Brown argues that the traffic stop of the vehicle in which he was a passenger, which immediately preceded his arrest, violated his Fourth Amendment rights. Brown alleges the officer who conducted the stop perjured himself both during a suppression hearing and at his trial. To the extent this ground for relief rests upon the officer's testimony in the suppression hearing, Brown raised that claim in his direct appeal, he was given a full and fair opportunity to litigate it, and it was rejected by the Ninth Circuit. To the extent Brown's present claim rests upon the officer's trial testimony, which was consistent with his testimony during the suppression hearing, he has neither shown cause for failing to raise this argument in his direct appeal nor can he show prejudice given the Ninth Circuit's rejection of his suppression hearing argument.

         In his third ground for relief, Brown argues his counsel was ineffective because he stopped Brown from challenging a ruling made by the magistrate judge regarding statements made by the driver of the vehicle, though she had not testified during the suppression hearing. The ground is without merit and contradicted by the record. In his report and recommendation, the magistrate judge did not make a ruling regarding the driver's statements. Rather, he noted her statements as part of a factual background that relied “on those portions of the arrest report . . . that are not in dispute for purposes of Defendant's Motion to Suppress.” A review of that arrest report, which Brown attached to his motion to suppress, reveals that the magistrate judge's summary of the driver's statements is ...

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