Opinion
02 CV 2063 (HB)
July 31, 2003
OPINION AND ORDER
Petitioner Craig Brown brings this habeas petition pursuant to 28 U.S.C. § 2255 to challenge his guilty plea on the basis of ineffective assistance of counsel. Brown pled guilty to one count of conspiring to distribute cocaine, in violation of 21 U.S.C. § 846. In light of his ineffective assistance claims, petitioner further asserts that his plea was involuntary. For the following reasons, petitioner's habeas is denied.
I. BACKGROUND
In 1996, the Federal Bureau of Investigation began investigating Yonell Allums, a reputed narcotics trafficker who distributed cocaine and crack on the east coast. The FBI discovered that Brown and his partner Lamont Jamal Williams bought cocaine from Allums in New York and sold it in Wilmington, North Carolina. In July 1997, Brown, Williams, Allums and others were charged with conspiracy to distribute 5 or more kilograms of cocaine and 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846. Brown was arrested on July 28, 1999.
On November 22, 1999, Brown pled guilty before Magistrate Judge Fox pursuant to a plea agreement with the United States government. Ordinarily, violation of 21 U.S.C. § 846 carries a maximum sentence of life imprisonment, a mandatory minimum term often years imprisonment (120 months), a maximum term of lifetime supervised release, a mandatory minimum term of five years supervised release, and a mandatory $100 special assessment. 21 U.S.C. § 841(b). In exchange for the plea, the government recommended granting Brown relief under 18 U.S.C. § 3553(f) — the so-called "safety-valve" provision — so that he would be eligible for a two level reduction in his offense level pursuant to the Federal Sentencing Guidelines.
The Probation Office calculated the applicable sentencing range to be 70-87 months, and recommended that Brown be sentenced to 70 months. On April 11, 2000, this Court followed the recommendation of the Probation Office and sentenced Brown to 70 months imprisonment, followed by 4 years supervised release. Brown retained new counsel to represent him on his direct appeal. On April 26, 2000, Brown filed a notice of appeal with the Second Circuit, and on January 4, 2001, Brown's appellate counsel filed a motion and Anders brief, pursuant to Anders v. California, 386 U.S. 738 (1967), contending that no non-frivolous issues could be raised on the appeal. In the Anders brief, Brown's appellate counsel provided a summary of the entire plea and sentencing record, including those portions of the record that show Brown knowingly and voluntarily agreed to the plea. See Anders Brief at 11-13. The Second Circuit granted the motion and summarily dismissed the appeal on June 29, 2001.
II. DISCUSSION
Brown now asserts that he was denied effective assistance of counsel when he plead guilty because his trial counsel failed 1) to seek a change of venue, 2) to procure him a sentence comparable to that of his co-conspirators, and 3) to inform him that he could receive a lighter sentence based on the amount of drugs involved in the conduct to which Brown plead guilty. Based on the ineffective assistance of counsel, Brown claims that his plea was involuntary.
Neither Brown, nor his appellate counsel, raised ineffective assistance of counsel in the direct appeal. As a general rule, "where a petitioner does not bring a claim on direct appeal, he is barred from raising the claim in [a] subsequent § 2255 proceeding unless he can establish both cause for the procedural default and actual prejudice resulting therefrom." Billy-Eko v. United States, 8 F.3d 111, 113-14 (2d Cir. 1993). Petitioner may be entitled to seek collateral relief, however, notwithstanding his default, if 1) his trial counsel was the same on direct appeal or 2) his claim relies on evidence developed outside the trial record. Id. at 115.
Here, petitioner retained new counsel on appeal following his plea allocution and sentencing, and his claim for ineffective assistance is based solely on the conduct of his counsel at the district court level. Thus, neither exception to the general rule applies to this case. Petitioner fails to make any showing that cause exists for his failure to raise his ineffective assistance of counsel claim on direct appeal, and this Court is therefore procedurally barred from considering Brown's defaulted claim.
B. Involuntary Guilty Plea
Brown appears to further assert that his guilty plea was involuntary, based largely, if not entirely, on his trial counsel's alleged ineffective assistance. He claims that he would not have pled guilty but for counsel's omissions. Because this Court is procedurally barred from reviewing Brown's ineffective assistance of counsel claim, I cannot consider his involuntary plea claim on this basis. To the extent that his involuntary plea claim rests on any other grounds that may have been impliedly brought to the Second Circuit's attention on direct appeal, that claim too is barred from my consideration. In the Anders brief, Brown's appellate counsel reviewed the record and argued that Brown's guilty plea was a "voluntary and intelligence choice" as evidenced by Brown's responses to Magistrate Judge Fox's questions that confirmed that Brown understood the charges to which the plea was offered, the maximum and minimum penalty (including supervised release) for admitting his guilt, and the constitutional rights he would waive by pleading guilty. See Anders Brief at 11-13. In addition, Magistrate Judge Fox confirmed that Brown had not taken drugs or alcohol in the 24 hours preceding his guilty plea to ensure Brown understood the events transpiring at the plea. Id. at 12. In light of the Second Circuit's summary grant of Brown's appellate counsel's motion for Anders relief, based in part on the argument that Brown's plea was voluntary, Brown cannot now raise the same issue, which the Second Circuit rejected, in his § 2255 petition. United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) (per curiam) ("It is well established that a § 2255 petitioner cannot be used to relitigate questions which were raised and considered on direct appeal.").
As noted by the government in its papers, it is unclear whether petitioner has actually made a claim of an involuntary plea. Because he is pro se, the court considers it nonetheless.
III. CONCLUSION
Brown's § 2255 habeas petition is dismissed in its entirety, and the Clerk of the Court is instructed to close any pending motions and remove this case from my docket. Because petitioner has not made a substantial showing of the denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253. I certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this decision would not be taken in good faith.