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Brewster v. United States

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

October 8, 2019

MARION QUINTON BREWSTER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Max O. Cogburn, Jr., United States District Judge.

         THIS MATTER is before the Court on initial screening of Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255. [Doc. No. 1].

         I. BACKGROUND

         On January 9, 2017, Pro Se Petitioner Marion Quinton Brewster (“Petitioner”) pleaded guilty without a written plea agreement to one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). [Criminal No. 3:16-cr-00220-MOC-DSC (“CR”), Doc. 18: Acceptance and Entry of Guilty Plea]. At the plea hearing, a Factual Basis was accepted and made part of the record, with certain objections made on Petitioner's behalf. [See CR Doc. 38 at 10: Plea Hearing Transcript]. The Factual Basis stated, in pertinent part, as follows:

On May 19, 2016, at approximately 8:45 p.m., Charlotte Mecklenburg Police Department Officers (CMPD) responded to an armed robbery call at a self-service car wash in Charlotte. [CR Doc. 17 at ¶ 1: Factual Basis]. The victim of the alleged robbery spoke with the officers and told them he had been washing his truck when a black male with a dark cap and wearing a bandana over his face approached the victim and pointed a silver revolver at him. The gunman ordered the victim to empty his pockets and throw everything on the ground. The victim complied, tossing his wallet and some loose change on the pavement. The gunman asked where the victims keys were. The victim replied that they were in the truck. The gunman then told the victim to “Run, Motherfucker!” The victim ran across the street and called the police from a local business. [Id.].

         The victim told the responding officers that before the robbery the victim had noticed a low-riding green Ford Expedition driving suspiciously around the car wash. [Id. at ¶ 2]. As the victim ran away, he saw the Expedition parked in the parking lot of the carwash. By the time the officers arrived on the scene, the Expedition was gone.[1] [Id.].

         Just a few minutes later, other CMPD officers located a green Expedition fitting the victim's description. [Id. at ¶ 3]. The officers pulled the vehicle over and, as the officers approached the vehicle on foot, the front seat passenger, later identified as the Petitioner, jumped out and ran. The officers who chased the Petitioner saw Petitioner drop a chrome revolver, which was immediately recovered and determined to be a Smith & Wesson “Airweight” Model 642, .38 caliber handgun. This gun was reported stolen in Columbia, South Carolina. [Id.]. The Petitioner was apprehended a short distance later. The driver of the Expedition was detained behind the wheel and removed from the vehicle. He was wearing a ski mask pulled down around his neck. The victim's wallet was in the front seat area of the Expedition. [Id.].

         The victim was brought to the scene where the Petitioner and the driver were being detained in CMPD vehicles. The victim positively identified the Petitioner and the Expedition but could not identify the driver. The victim also identified his wallet and its contents. [Id. at ¶ 5]. The Petitioner has been previously convicted of multiple robbery and carjacking offenses in South Carolina. [Id. at ¶ 6]. The handgun that Petitioner possessed was not manufactured in North Carolina. [Id. at ¶ 7].

         On August 18, 2016, Petitioner was charged in a Bill of Indictment with one charge of “knowingly and unlawfully” possessing a firearm and ammunition in interstate commerce “having been previously convicted of one or more crimes punishable by imprisonment for a term exceeding one year, ” in violation of 18 U.S.C. § 922(g)(1). [CR Doc. 3: Indictment]. A United States Magistrate Judge accepted Petitioner's guilty plea after conducting a thorough plea colloquy, during which Petitioner was represented by counsel. [See CR Doc. 38 at 1-15]. Under oath, Petitioner told the Court that he received a copy of the indictment and discussed it with his attorney. [CR Doc. 18 at ¶ 8: Entry and Acceptance of Guilty Plea]. The Court read the full charge aloud to the Petitioner during the hearing. [CR Doc. 38 at 4]. The Court advised that the maximum penalty for the offense under normal circumstances would be 10 years' imprisonment. [CR Doc. 38 at 5]. The Court then instructed that the maximum penalty changes when the defendant is an armed career criminal. In those cases, the Court advised that the maximum penalty for the crime to which Petitioner was pleading guilty was “not less than 15 years nor more than life imprisonment.” [CR Doc. 38 at 5]. Petitioner then told the Court that he fully understood the charge against him, including the maximum and minimum penalties he faced. [CR Doc. 18 at ¶ 9; CR Doc. 38 at 5]. The Petitioner further attested that he had spoken with his attorney regarding how the U.S. Sentencing Guidelines might apply to his case and that, in some circumstances, Petitioner may receive a sentence higher or lower than that called for in the Guidelines. [CR Doc. 18 at ¶ 13, 14]. The Petitioner also told the Court that he understood that if his sentence is more severe than Petitioner expected, the Petitioner will still be bound by his plea and would have no right to withdraw it. [CR Doc. 18 at ¶ 17]. The Petitioner stated, under oath, that he is in fact guilty of the count in the Bill of Indictment to which he was pleading guilty. [CR Doc. 18 at ¶ 24; CR Doc. 38 at 9].

         The Petitioner also told the Court that he was aware that a Factual Basis had been filed in his case and that he had read it, understood it, and agreed with it. [CR Doc. 18 at ¶ 26-7; CR Doc. 38 at 10]. Petitioner stated that no one had threatened, intimidated, or forced him to enter his plea of guilty. [CR Doc. 18 at ¶ 28]. He told the Court that he was “satisfied with the services of [his] lawyer in this case.” [CR Doc. 18 at ¶ 31].

         Several months later at the Petitioner's sentencing hearing, the Court affirmed the Magistrate Judge's findings and acceptance of the Petitioner's guilty plea after reviewing it with the Petitioner. [CR Doc. 39 at 3-4]. The Court entered a verdict and judgment of guilty. [Doc. 39 at 4]. Before the sentencing hearing, a probation officer prepared a Presentence Investigation Report (PSR). At the hearing, Petitioner's counsel raised an unresolved objection related to the application of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to Petitioner's previous convictions. [CR Doc. 39 at 5]. Specifically, the Plaintiff had four convictions from two dates in November 2000, two from acts committed on November 7, 2000, and two from acts committed on November 17, 2000. The Court and the parties agreed the convictions on November 17, 2000, for armed robbery and carjacking, were committed as a single criminal episode for purposes of the ACCA. [CR Doc. 39 at 5-6]. There was dispute, however, on whether the two convictions for acts committed on November 7, 2000, were one continuous criminal episode or two separate occasions. [See CR Doc. 39 at 5-21]. Ultimately, the Court overruled the Petitioner's objections and concluded, for purposes of the ACCA, the crimes committed on November 7, 2000, were to be considered separately and sentenced the Petitioner as an armed career criminal. [CR Doc. 39 at 23-24]. The Petitioner's Total Offense Level was 31 and his Criminal History Category was VI, which yielded a guidelines range of 188 months to 235 months in prison. [CR Doc. 31 at 1]. The Court, however, varied downward from this range, sentencing the Petitioner to 180 months' imprisonment and a term of supervised release of five years. [CR Doc. 30: Judgment]. In so doing, the Court noted that the “ACCA predicate convictions were nearly 17 years prior to the sentencing date and occurred within one month of each other.” [CR Doc. 31 at 3: Statement of Reasons].

         The Petitioner appealed to the Fourth Circuit Court of Appeals, challenging the District Court's conclusion that Petitioner's crimes of conviction on November 7, 2000, were committed on different occasions. [CR Doc. 32; see CR Doc. 41 at 2]. The Fourth Circuit upheld the District Court's conclusion that the offenses occurred on separate occasions and affirmed the Petitioner's criminal judgment. [CR Doc. 41 at 6].

         II. STANDARD OF REVIEW

         A federal prisoner claiming that his “sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a).

         Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. In many cases, an evidentiary hearing is required to determine whether or not counsel was ineffective for misadvising a petitioner about a plea offer. See generally United States v. Witherspoon, 231 F.3d 923, 926-27 (4th Cir. 2000); 28 U.S.C.A. § 2255(b). After examining the record in this matter, the Court finds that the arguments presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         III. DISCUSSION

         Petitioner raises eight claims in his motion to vacate. Specifically, he argues that: (1) he received ineffective assistance of counsel because (a) his attorney failed to adequately investigate to gather all evidence regarding the offense prior to trial, (b) his attorney coerced Petitioner into pleading guilty to the offense without having all the facts, (c) his attorney failed to object to the Government's introduction of the “factual basis agreement” at sentencing, (d) his attorney failed to use Petitioner's documents to show the predicate South Carolina convictions all counted as one continuous criminal episode, and (e) his attorney failed to explain the difference between a sentencing guideline and the ACCA enhancement prior to pleading guilty; (2) Petitioner's South Carolina carjacking offenses no longer apply as violent felonies for purposes of ACCA and Petitioner is entitled to be re-sentenced under 18 U.S.C. § 924(e); (3) Petitioner's Fifth, Sixth, and Fourteenth Amendment rights were violated where his sentence was enhanced based on prior convictions and sentences (double jeopardy); (4) the Court erred and abused its discretion in sentencing Petitioner to a 180-month sentence before inquiring whether Petitioner (a) knew that he was being sentenced subject to the ACCA enhancement and (b) did, in fact, plead guilty to the predicate South Carolina offenses knowingly and intelligently; (5) his guilty plea was not knowingly and voluntarily made in violation of his right to due process; (6) the state court documents used to impose an ACCA sentence were “not sufficient nor detailed enough without more to support prior offenses on separate occasions”; (7) the Government engaged “in a form of prosecutorial misconduct which violated [Petitioner's] right to due process and prejudiced his right to a fair sentencing”; and (8) Petitioner is actually innocent of violating § 922(g) under Rehaif v. United States, 139 S.Ct. 2191 (2019). [Doc. 1 at 19-20, 45].

         The Court groups and addresses Petitioner's claims as follows: (1) claims of ineffective assistance of counsel; (2) error by the Court at sentencing; (3) legal claims; (4) claim of prosecutorial misconduct; (5) claim that Petitioner's guilty plea was not knowing and voluntary; and (6) claim of actual innocence.

         A. Petitioner's Claims of Ineffective Assistance of Counsel

         The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. See U.S. CONST. amend. VI. To show ineffective assistance of counsel, Petitioner must first establish a deficient performance by counsel and, second, that the deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In making this determination, there is “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689; see also United States v. Luck, 611 F.3d 183, 186 (4th Cir. 2010). Furthermore, in considering the prejudice prong of the analysis, the Court “can only grant relief under . . . Strickland if the ‘result of the proceeding was fundamentally unfair or unreliable.'” Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)). Under these circumstances, the petitioner “bears the burden of affirmatively proving prejudice.” Bowie v. Branker, 512 F.3d 112, 120 (4th Cir. 2008). If the petitioner fails to meet this burden, a “reviewing court need not even consider the performance prong.” United States v. Rhynes, 196 F.3d 207, 232 (4th Cir. 1999), opinion vacated on other grounds, 218 F.3d 310 (4th Cir. 2000).

         To establish prejudice in the context of a guilty plea, a petitioner must show that “there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Meyer v. Branker, 506 F.3d 358, 369 (4th Cir. 2007) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Further, a petitioner must show that proceeding to trial would have been objectively reasonable. See United States v. Fugit, 703 F.3d 248, 260 (4th Cir. 2012). In evaluating such a claim, statements made by a defendant under oath at the plea hearing carry a “strong presumption of verity” and present a “formidable barrier” to subsequent collateral attacks. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Indeed, “in the absence of extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy is conclusively established, and a district court should dismiss . . . any § 2255 motion that necessarily relies on allegations that contradict the sworn statements.” United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005).

         When a defendant pleads guilty, he waives all nonjurisdictional defects in the proceedings conducted prior to entry of the plea.” United States v. Moussaoui, 591 F.3d 263, 279 (4th Cir. 2010). Thus, a knowing and voluntary guilty plea “forecloses federal collateral review” of prior constitutional deprivations, including allegations of ineffective assistance of counsel that do not affect the voluntariness of the plea. See Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1294-96 (4th Cir. 1992); accord United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997); Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). A guilty plea is valid when it ‚Äúrepresents a voluntary and ...


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