Opinion
7:18-CR-184-FL 7:23-CV-487-FL
05-20-2024
JAMES CARNELL BRINSON, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter comes before the court on Petitioner James Carnell Brinson's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 and supporting memorandum, [DE-374, -375], and the Government's motion to dismiss, [DE-384], Petitioner filed a response to the Government's motion, [DE-387], and the matter is fully briefed and ripe for decision. For the reasons stated below, it is recommended that the motion to dismiss be allowed and the petition be dismissed.
I. Procedural History
A grand jury sitting in the Eastern District of North Carolina charged Brinson in a nine-count superseding indictment with participating in a drug conspiracy to distribute, as well as the distribution of, methamphetamine and heroin and with possession of a firearm in furtherance of drug trafficking. [DE-215], Brinson, with the assistance of court-appointed counsel, pleaded not guilty, and a jury trial was scheduled for November 16, 2020. [DE-221], One week prior to trial, Brinson filed a pro se motion to appoint new counsel. [DE-226]. At a hearing on the motion, Brinson indicated that there was a lack of communication with counsel and a disagreement over trial tactics, but upon questioning from the court, defense counsel explained that Brinson intended to testify untruthfully, and the lack of communication was a result of counsel informing Brinson that he could not suborn perjury at trial. [DE-237] at 3-4. The undersigned denied the motion. Id. at 4-6. Brinson proceeded to trial and was convicted on all counts with the exception of one count of possession of a firearm in furtherance of a drug trafficking crime, and he was sentenced to 420 months' imprisonment and five years' supervised release. [DE-298]. The Court of Appeals affirmed Brinson's conviction and sentence. United States v. Brinson, No. 21-4135, 2022 WL 1114369, at *3 (4th Cir. Apr. 14, 2022). Brinson timely filed the instant § 2255 petition, [DE-374], and the Government then moved to dismiss Brinson's petition, [DE-384].
Brinson has waived his attorney-client privilege regarding the issues raised in his petition. See Griffin v. United States, No. 3:14-CR-82-RJC-DSC-4, 2022 WL 3224605, at * 1 (W.D. N.C. Aug. 9, 2022) (“[F]ederal courts have long held that, when a habeas petitioner raises a claim of ineffective assistance of counsel, he waives the attorney-client privilege as to his communications with counsel regarding those claims.”) (collecting cases).
II. Standard of Review
After conviction and exhaustion or waiver of any right to appeal, courts and the public can presume that a defendant stands fairly and finally convicted. See United States v. Frady, 456 U.S. 152, 164-65 (1982). However, prisoners in federal custody may attack the validity of their convictions pursuant to 28 U.S.C. § 2255. Section 2255 provides a means for a defendant convicted of a federal offense to collaterally attack a conviction or sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). “[T]hus § 2255 relief is not limited to constitutional error in a conviction or sentence.” United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999) (citations omitted). Where a petitioner seeks relief from a nonconstitutional error, “the scope of review... is more limited than that of constitutional error; a nonconstitutional error does not provide a basis for collateral attack unless it involves a fundamental defect which inherently results in a complete miscarriage of justice, or is inconsistent with the rudimentary demands of fair procedure[.]” Id. (internal quotation marks and citations omitted). “In a § 2255 proceeding, the burden of proof is on petitioner to establish his claim by a preponderance of the evidence.” Toribio-Ascencio v. United States, No. 7:05-CR-97-FL, 2010 WL 4484447, at *1 (E.D. N.C. Oct. 25, 2010) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)).
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint, not to resolve conflicts of fact or to decide the merits of the action. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). This standard applies equally to a Rule 12(b)(6) motion challenging a § 2255 motion. See Rule 12, Rules Governing Section 2255 Proceedings (applying the Federal Rules of Civil Procedure to § 2255 proceedings to the extent such rules are not inconsistent with any statute or the § 2255 rules). However, the ‘“[f]actual allegations must be enough to raise a right to relief above the speculative level' and have ‘enough facts to state a claim to relief that is plausible on its face.'” Wahi v. Charleston Area Med. Ctr, Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.” Twombly, 550 U.S. at 555 (citations omitted). In considering a motion to dismiss, the court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Revene v. Charles Cnty. Comm 'rs, 882 F.2d 870, 872 (4th Cir. 1989) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Moreover, a court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
III. Analysis
Brinson asserts his counsel was ineffective by (1) depriving him of his fundamental right to testify truthfully in his own defense at trial in violation of his Fifth and Sixth Amendment rights, and (2) constructively denying him counsel during the hearing on his motion for new counsel.Pet. [DE-374] at 4-5; Pet'r's Mem. [DE-375] at 8-15. The Government contends that Brinson's ineffective assistance claims are barred by the law of the case doctrine or, alternatively, they fail on the merits. Gov't's Mem. [DE-385] at 8-14.
Brinson states it was a motion for new trial, but the motion was one for appointment of new counsel. [DE-226].
The Sixth Amendment guarantees criminal defendants effective assistance of counsel. United States v. Murillo, 927 F.3d 808, 815 (4th Cir. 2019) (citing Strickland v. Washington, 466 U.S. 668, 685-86 (1984)). To demonstrate ineffective assistance of counsel, a petitioner must show that counsel's representation was deficient and that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. To establish deficient performance, the petitioner must overcome a ‘“strong presumption' that counsel's strategy and tactics fall ‘within the wide range of reasonable professional assistance.'” Burch v. Corcoran, ITS F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). As to the prejudice component, a petitioner must show “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. It is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697 (explaining “a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies” or “to address both components of the inquiry if the defendant makes an insufficient showing on one”).
A. Defendant's Right to Testify at Trial
Brinson asserts that he was denied effective assistance of counsel and deprived of his fundamental right to testify truthfully in his own defense in violation of his Fifth and Sixth Amendment rights. Pet. [DE-374] at 4; Pet'r's Mem. [DE-375] at 8-13. The Government contends that Brinson is attempting to recast an issue raised on direct appeal as an ineffective assistance of counsel claim and that Brinson's claim fails on the merits. Gov't's Mem. [DE-385] at 9-14.
On appeal, Brinson raised the issue of whether the district court erred in denying his request for a new attorney, which is different than the assertion here that his right to testify at trial was denied. Gov't's Ex. 1, Appellant's Br. [DE-385-1] at 28-55. The law of the case doctrine “forecloses relitigation of issues expressly or impliedly decided by the appellate court.” Cavillo-Rojas v. United States, Nos. 7:08-CR-139-FL, 7:13-CV-50-FL, 2013 WL 4461551, at *3 (E.D. N.C. Aug. 20, 2013) (quoting United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993)). The denial of the right to counsel and the denial of the right to testify at trial raise distinct legal issues, and thus, the latter is not barred by the law of the case doctrine.
Turning to the merits, the court finds that Brinson's claim he was denied the right to testify at trial fails. “[A] criminal defendant has a constitutional right to testify on his own behalf at trial.” United States v. Midgett, 342 F.3d 321, 325 (4th Cir. 2003) (citing Rock v. Arkansas, 483 U.S. 44 (1987)). “Further, it is the defendant who retains the ultimate authority to decide whether or not to testify.” United States v. McMeans, 927 F.2d 162, 163 (4th Cir. 1991) (citing Jones v. Barnes, 463 U.S. 745, 751 (1983)). In order to succeed on a claim of ineffective assistance of counsel based upon an attorney's refusal to allow a defendant to exercise his right to testify, a petitioner must show both that counsel violated his right and that his testimony had a reasonable probability of changing the outcome of the case. United States v. Rashaad, 249 Fed.Appx. 972, 973 (4th Cir. 2007) (citing Strickland, 466 U.S. at 694).
Brinson makes the conclusory allegation that he was deprived of his fundamental right to testify truthfully in his own defense, that defense counsel had a duty to assist him in putting his testimony before the jury, and that he was prejudiced because he could not contest the prosecution's theory through his testimony. Pet'r's Mem. [DE-375] at 9-12. None of these assertions is sufficient to warrant a hearing or to survive dismissal.
Brinson provides no factual allegations to support his claim that he was denied the right to testify at trial. Brinson fails to allege how counsel prevented him from testifying, or even that counsel instructed him not to testify, and there is no allegation that he was not informed of his right to testify at trial. Brinson's bare allegation that his right to testify at trial was violated is insufficient to proceed on this claim. See Underwood v. Clark, 939 F.2d 473, 476 (7th Cir. 1991) (finding no hearing or other action on claim that defendant was denied the right to testify where his only evidence was a bare-bones affidavit stating he told his attorney he wished to testify, and his attorney told him he could not testify). Additionally, Brinson has failed to sufficiently allege prejudice. While he states that he was prevented from contesting the Government's theory of the case, he has failed to proffer any testimony he would have provided that had a reasonable probability of changing the outcome of the case. See Gregory v. United States, 109 F.Supp.2d 441, 448 (E.D. Va. 2000) (denying 2255 claim, without a hearing, that defendant was denied the right to testify at trial where his allegations failed to demonstrate “how his testimony would have affected the outcome of his trial or even to indicate what his testimony would have been had he taken the stand,” which was insufficient to satisfy the Strickland prejudice requirement), aff'd, 30 Fed.Appx. 55 (4th Cir. 2002). Accordingly, Brinson's claim that he was denied the right to testify at trial should be dismissed.
B. Defendant's Right to New Counsel
Brinson asserts that he was constructively denied counsel during the hearing on his motion for new counsel when his then counsel advocated against his interest outside of his presence. Pet. [DE-374] at 5; Pet'r's Mem. [DE-375] at 13-15. The Government contends that Brinson is attempting to recast an issue raised on direct appeal as an ineffective assistance of counsel claim and that Brinson's claim fails on the merits. Gov't's Mem. [DE-385] at 9-14.
As explained above, one week prior to trial, Brinson filed a pro se motion to appoint new counsel. [DE-226], At a hearing on the motion, Brinson indicated that there was a lack of communication with counsel and a disagreement over trial tactics, but upon questioning from the court, defense counsel explained that their attorney-client relationship was impaired because, as counsel explained, “[w]hat [Brinson] intends to do is his decision, but I can't participate in some of those decisions.” Hr'g Tr. [DE-380] at 11:25-12:11. Counsel indicated he was “compromised” and that although “it's a core fundamental right of the defendant to do certain things. What I know, I can't assist in it.” Id. at 13:1-19. The court then conducted an examination of defense counsel ex parte and in camera, and counsel stated that Brinson intended to testify untruthfully and that the lack of communication was a result of counsel informing Brinson that he could not suborn perjury at trial. [DE-237] at 3-4. The undersigned denied the motion for new counsel. Id. at 4-6 (citing Nix v. Whiteside, 475 U.S. 157, 173 (1986) (“[T]he right to counsel includes no right to have a lawyer who will cooperate with planned perjury.”).
The district court upheld the denial and also denied a renewed motion to appoint new counsel at the outset of the trial. Trial Tr. [DE-319] at 7:20-8:5. On direct appeal, Brinson raised the issue of whether the undersigned and the district court erred in denying his request for a new attorney. Gov't'sEx. 1, Appellant's Br. [DE-385-1] at 28-55. The court of appeals found no abuse of discretion in the denial of the motion for new counsel because it appeared that “the conflict between the two was based on Brinson's desire to commit perjury, not on a legitimate lack of communication” and concluded that “Brinson does not have a right to use counsel to suborn perjury.” See Brinson, 2022 WL 1114369, at *1 (citing Nix, 475 U.S. at 175-76).
Here, Brinson claims that his counsel was ineffective at the hearing on the motion for new counsel because he did not act in Brinson's interests by telling the court that Brinson intended to perjure himself. Pet'r's Mem. [DE-375] at 14-15. As the court noted in the order denying Brinson's motion for new counsel, defense counsel was obligated under Rule 3.3(d) of the North Carolina Rules of Professional Conduct, Candor Toward the Tribunal, to inform the court in an ex parte proceeding “of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.” [DE-237] at 3 n. 1. Providing effective assistance of counsel does not require an attorney to violate the ethics rules. See Blakeney v. Lee, No. 3:05 CV-10-V, 2007 WL 1341456, at *28 (W.D. N.C. May 3, 2007) (“A number of appellate courts have held that an attorney's duty to effectively represent a client does not include violating rules of professional conduct.”) (citing Putman v. Head, 268 F.3d 1223, 1246 (11th Cir. 2001) (“Although an attorney has an ethical duty to advance the interest of her client, that duty is limited by an equally solemn duty to comply with the law and standards of professional conduct.”); Anderson v. Calderon, 232 F.3d 1053, 1095 (9th Cir. 2000) (“[Anderson's attorney] believed that Anderson did kill Blundell, and to attempt to manufacture evidence to the contrary would be a ‘fraud on the court.'”), overruled on other grounds, Osband v. Woodford, 290 F.3d 1036, 1043 (9th Cir. 2002); Davis v. Singletary, 119 F.3d 1471, 1475 (11th Cir. 1997) (“Because of his ethical duty not to present a defense based upon what he personally knew to be a lie, [the defense attorney] could not have used at trial [the defense expert's opinion], founded as it is on a falsehood.”); Scott v. Dugger, 891 F.2d 800, 803 (11th Cir. 1989) (“[A]ppellant's lawyer could not have rendered ineffective assistance by failing or refusing to present a false defense.”); Williams v. Kemp, 846 F.2d 1276, 1281 (11th Cir. 1988) (“In light of the admission by Williams, [his attorney's] decision not to produce contrary testimony merely fulfilled his ethical obligation to refrain from producing false or misleading evidence” and did not constitute ineffective assistance)). Accordingly, defense counsel did not provide ineffective assistance of counsel by informing the court during the hearing on the motion for new counsel that Brinson intended to commit perjury.
To the extent Brinson takes issue with the court's failure to appoint him new counsel, Brinson raised that issue on appeal and cannot raise it again in this collateral proceeding. See Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976) (“[O]nce a matter has been decided adversely to a defendant on direct appeal it cannot be relitigated in a collateral attack under Section 2255.”); Lewis v. United States, Nos. 5:ll-CR-229-F-8, 5:14-CV-374-F, 2016 WL 3951087, at *11 (E.D. N.C. July 18, 2016) (citing United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993) (a habeas motion is not the appropriate forum to re-litigate issues previously addressed on direct appeal)); United States v. Johnson, 105 F.3d 670 (table), No. 96-6190, 1997 WL 2658, at * 1 (10th Cir. Jan. 2, 1997) (“We cannot again review this claim simply because it has been recast in the clothing of an ineffective assistance of counsel claim.”). Accordingly, this claim should be dismissed.
IV. Conclusion
For the reasons stated above, it is recommended that that the motion to dismiss be allowed, and the petition be dismissed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until April 8, 2024 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g, 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
Submitted, the 25th day of March, 2024.