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Brown v. United States

United States District Court, W.D. North Carolina, Charlotte Division

November 2, 2017

KENNETH FITZGERALD BROWN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Frank D. Whitney y Chief United States District Judge

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1), and motion to amend, (Doc. No. 4). The motion to amend will be granted and § 2255 relief will be denied.

         I. BACKGROUND

         Petitioner was charged in the underlying criminal case with: Count (1), possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1); and Count (2), possession of a detectable amount of marijuana in violation of 21 U.S.C. § 844(a). (Crim. Case No. 3:13-cr-275, Doc. No. 7). Both offenses were alleged to have occurred on or about April 5, 2013. (Id.).

         Petitioner filed a motion to suppress through counsel, arguing that the firearm, marijuana, and Petitioner's statements were the fruit of an illegal search and seizure. (Id., Doc. No. 8). An evidentiary hearing came before Magistrate Judge Keesler at which Petitioner and Officer Brian Russell testified, summarized as follows:

On April 5, 2013, Officers B.K. Russell (“Russell”) and R.M. Anderson (“Anderson”) visited Defendant at his residence to conduct an investigatory follow-up of a break-in that occurred at Defendant's home the night before. Defendant does not dispute he invited both officers into his residence at this juncture. Russell entered Defendant's living room through the front door and immediately smelled the odor of burnt marijuana. Three people were in the living room: Defendant, Defendant's son, and a repairman working on the back door. After fifteen minutes conversing with the officers inside the residence, Defendant led both officers to the backyard. While outside, Anderson tapped her nose in Russell's direction. Officer Russell testified “that's something we typically do.... If we made any kind of-you know, I guess notice of an odor like [marijuana], that would be the way we would indicate that between ourselves ...”
While still outside, Russell told Defendant he smelled marijuana. Defendant admitted there was marijuana inside the home, and Russell asked if he could go inside to retrieve it. Defendant verbally consented, opened the front door of the home and stood sideways, motioning for the officers to re-enter. Once inside, Russell asked Defendant where the marijuana was located, and Defendant said it was in the bedroom. Defendant led both officers to a partially closed door and asked if the officers could wait outside while he entered the room to ensure his girlfriend was “decent.” Russell allowed Defendant to enter the room and close the door. Defendant opened the door after a minute or two and Russell observed Ms. Katie Gowen, Defendant's girlfriend, lying on the left side of the bed. Russell inquired again about the marijuana. Defendant handed Russell an aluminum foil, homemade pipe that appeared to contain marijuana residue and a container that appeared to hold several marijuana roaches.
Reacting to Defendant's heightened nervousness at the time, Russell asked if there were any weapons in the house. Defendant answered yes, proceeded to the left side of the bed and grabbed a gun from under the mattress. Russell repeatedly instructed Defendant not to retrieve the gun but Defendant removed the clip from the gun, ejected a live round from the chamber, reloaded the round into the clip, and placed the gun and clip on the bed. In the same few seconds, Russell released the small, belted latch over his own weapon but did not draw.
At that point, Russell smelled the odor of “green marijuana” and asked Defendant if there was any more in the home. Defendant told Russell there was marijuana, and Ms. Gowen handed a jar of what appeared to be marijuana to Russell. Russell asked if he, Anderson, Defendant and Ms. Gowen could talk further in the living room and Defendant agreed.
After Defendant and Ms. Gowen led Russell and Anderson to the living room, Russell asked Defendant for consent to search the rest of the residence. Defendant asked about the process, and Russell explained that Defendant could consent as he had up to that time, or if he declined, Russell would apply to a judge for a search warrant. Defendant's son, who was present in the living room, advised Defendant to require the officers to obtain a search warrant. Defendant chose to consent to the search, and Russell went out to his patrol car to retrieve the paperwork and call for additional officers. Upon Russell's return, Defendant reviewed, signed, and dated the consent to search form. The additional officers arrived, and Defendant himself opened the door for one of the officers and allowed him inside the house. During this time, Defendant got up to pay the repairman for the repair of the back door. In addition to the marijuana, paraphernalia, gun and ammunition found, officers took photographs and seized United States Currency. Both the Defendant and Ms. Gowen were placed under arrest.

United States v. Brown, 2014 WL 2511378 at *1-2 (W.D. N.C. June 4, 2014) (citations omitted).

         Judge Keesler concluded that Petitioner's suppression hearing testimony was incredible and impossible to reconcile with the other evidence presented, and that no Fourth Amendment violation occurred. (Case No. 3:13-cr-275, Doc. Nos. 20, 23). The Court adopted Judge Keesler's recommendations and denied Petitioner's motion to suppress. (Id., Doc. No. 27).

         The case came before the Court for a bench trial on July 15, 2014, at which time the Court questioned the legal basis for conducting a bench trial rather than a jury trial. The parties explained that they had agreed to a bench trial because Petitioner stipulated to the majority of the elements yet wanted to preserve his right to appeal the suppression issue, yet the Government would not agree to a conditional plea:

THE COURT: … Let me first ask the Government. What's the Government's purpose in entering into this stipulated trial?
MS. FERRY: Your Honor, as Ms. Oseguera indicated previously, we are unwilling to do a conditional plea in this circumstance. We understand that the defendant wishes to preserve his appellate rights, and we want to do that in a way that is going to be the most expeditious for all parties involve. That is one of the reasons we agreed to a bench trial in this case.
THE COURT: So you refuse to enter into an 11(b) conditional plea?
MS. FERRY: That's correct.

(Id., Doc. No. 29 at 2) (emphasis added).

         Defense counsel agreed with the Government that a bench trial was appropriate to preserve Petitioner's appellate rights because the Government would not agree to a conditional plea:

MS. OSEGUERA: … I do agree with the Government in this case, and the reason I do and, you know, speaking on behalf of my client, Your Honor, is because we are trying to preserve his appellate issue.
He had a constitution right to file a motion. It was not frivolous. I filed the motion. It was very, very debated in front of the magistrate judge. I have been asking the Government for a conditional plea since the beginning. Since - I think their e-mails go back to December of last year requesting a conditional plea.
I just as recently as last Tuesday right after we got out of court, Your Honor, again I asked for a conditional plea in this case. The Government responded with this is a - the suppression issue is a factual dispute, not a legal dispute. And again, I'm still trying - I continue to ask the Government what is a legal dispute? What did I not bring up properly?
But, again, I don't believe the motion was frivolous. It was not bare bones either. It was highly contested.
What we are - the reason we are agreeing with the Government - initially we did not want to stipulate anything, because the Government informed me that they did not want to at sentencing provide acceptance of responsibility points. They did start bringing up obstruction of justice, because my client did testify at the suppression motion.
So today, Your Honor, again, we are accepting responsibility as much as we can for this offense. We're trying to make this as easy as possible for the Government and for the Court so we can get to sentencing.
And I did speak with my client, Mr. Brown, and he has agreed to continue the case until the September docket call, and we can move forward with a jury trial. At that point we will remain silent, but we will move forward with a jury trial at that point.

(Id., Doc. No. 29 at 13-14) (emphasis added).

         The Court disagreed with the parties about the appropriateness of a bench trial with factual stipulations, finding that Fourth Circuit case law suggested that such a proceeding would waive Petitioner's appellate rights, and set the case for a jury trial, which commenced September 3, 2014.

         At the start of the jury trial, the Court conducted a colloquy with Petitioner about his knowing and voluntary agreement to signed stipulations addressing to several elements of the offenses. Petitioner stated that he understood the Government's burden of proof and nevertheless wished to stipulate to the factual issues. (Id., Doc. No. 52 at 26-32). The Court then addressed the existence of any plea offers. The parties were unclear on the history of the plea negotiations and agreed to check the record to address the issue more accurately on the next day of trial. In open court, defense counsel proposed a plea to Count (2) and dismissal of Count (1), but the prosecutor stated on the record that the Government was not interested. (Id., Doc. No. 52 at 34).

         The parties addressed the status of the Government's best plea offer on the next day of trial as follows:

THE COURT: … Ms. Ferry, do you know what the last best offer was for Mr. Brown?
MS. FERRY: Yes, sir. We had extended him a plea agreement before the superseding indictment was returned, which would be a plea to Count One, the 922(g) count. And then once that was rejected, we ...

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