United States District Court, S.D. Mississippi, Northern Division
MARVIN R. BROWN PETITIONER
UNITED STATES OF AMERICA RESPONDENT
MEMORANDUM OPINION AND ORDER
Bramlette UNITED STATES DISTRICT JUDGE.
cause is before the Court on defendant/petitioner Marvin R.
Brown (“Brown”)'s Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (docket entry 174
in the criminal action and docket entry 1 in the civil
action), his first Supplemental Memorandum
in support thereof (docket entry 176), and his second
Supplemental Memorandum in support thereof (docket entry
conducting the preliminary review required by Rule 4 of the
Rules Governing Section 2255 Proceedings for the United
States Courts, the Court requested the Government to file an
answer, motion or other response as required by Rule 4. The
Government has filed its Response to the defendant's
Motion Under 28 U.S.C. § 2255 (docket entry 181), and
Brown has filed a Reply (docket entry 182).
Court finds that on May 11, 2015, Brown appeared for
arraignment on a twenty-one count indictment charging various
violations of money laundering and IRS reporting
requirements. On March 28, 2016, Brown pled guilty to
conspiring to launder proceeds of illegal narcotics
trafficking, pursuant to a written plea agreement and plea
supplement. On July 12, 2016, this Court sentenced Brown to
240 months' imprisonment, and a fine of $1, 500. The
Court further imposed a 3-year period of supervised release.
The sentence was ordered to run concurrent with the 240
months sentence imposed in United States v. Brown,
3:14-cr-64(CWR)(FKB). The Judgment was entered of record on
July 18, 2016. Brown did not appeal.
timely filed his Motion to Vacate on July 31, 2017 (docket
entry 174). His motion alleges that his Sixth Amendment right
to effective assistance of counsel was violated “when
counsel's actions led the Petitioner to enter an
involuntary, unknowing, and unintelligent plea under
uninformed and coercive circumstances ... [and] was violated
during sentencing proceedings, in that counsel failed to
challenge the imposition of an unreasonable sentence, as the
district court utilized unsupported firearm, sophisticated
means, drug quantity assessment, and leadership enhancements
in crafting the Petitioner's sentence.”
Id. Brown sets forth four complaints against his
former counsel, and requests an evidentiary hearing:
I. The collateral review waiver contained in the plea
agreement cannot bar review of the substantive issue raised
herein because the Petitioner's plea was entered due to
Counsel's ineffective assistance, thus the waiver is
II. The Petitioner's Sixth Amendment right to effective
assistance of counsel was violated When Counsel's
Assistance Resulted in an Unknowing, Involuntary,
Unintelligent Plea Under Coercive Circumstances.
III. The Petitioner's Sixth Amendment right to effective
assistance of counsel was violated during sentencing
proceedings when counsel failed to object to the imposition
of an unreasonable sentence that was based upon the use of
improper sentencing enhancements.
[IV.] The Petitioner's Sixth Amendment right to effective
assistance of counsel was violated when counsel failed to
challenge the sufficiency of the evidence of money
V. The Petitioner is entitled to an evidentiary hearing on
to Vacate, p. 4. Brown subsequently filed a memorandum in
support of his Petition (docket entry 176) and a supplemental
memorandum in support of his Petition (docket entry 178).
first complaint is that the plea agreement contains an
unenforceable provision waiving collateral review. A perusal
of his plea agreement (docket entry 122) reveals that Brown
waives post-conviction relief “except that Defendant
reserves the right to raise ineffective assistance of counsel
claims.” Since Brown is alleging ineffective assistance
of counsel in all of his claims, his Petition can be properly
heard by this Court under that auspice.
well established that in order to prevail on a claim of
ineffective assistance of counsel, a petitioner must show
that his “counsel's performance was
deficient” and that “the deficient performance
prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984).
[the movant] must demonstrate that his attorney's
performance fell below an objective standard of
reasonableness.” Id. “Second, [he] must
also prove that he was prejudiced by his attorney's
substandard performance.” Id.; see also
Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000). The
Fifth Circuit has stated that “[i]n order to succeed on
an ineffective assistance claim, [a movant] must establish
that his counsel's performance was deficient, and that
this deficiency prejudiced him.” United States v.
Simpson, 645 F.3d 300, 307 (5th Cir.),
cert. denied, 132 S.Ct. 543 (2011)(citing
Strickland, 466 U.S. at 687)). “Deficient
performance” means “that counsel made errors so
serious that counsel was not functioning as the
‘counsel' guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687.
“Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that under the circumstances,
the challenged action ‘might be considered sound trial
strategy.'” Id. at 689 (quoting Michel
v. Louisiana, 350 U.S. 91, 101 (1955)).
prove prejudice, the defendant “must show that there is
a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at
695. “An attorney's failure to raise a meritless
argument thus cannot form the basis of a successful
ineffective assistance of counsel claim because the result of
the proceeding would not have been different had the attorney
raised the issue.” United States v. Kimler,
167 F.3d 889, 893 (5th Cir. 1999). Conclusory
allegations are insufficient to ...