United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr., District Judge.
This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by Jeriel Malachi Brooks, a person in federal custody. On July 23, 2012, Brooks plead guilty before this Court to the offense of conspiracy to manufacture methamphetamine and, on October 22, 2012, this Court sentenced Brooks to the Bureau of Prisons for a term of 60 months, the mandatory minimum sentence. Brooks' § 2255 motion, which is based on several allegations of ineffective assistance of counsel, is fully briefed and ripe for disposition.
I. FACTS AND PROCEDURAL HISTORY
On June 20, 2010, Brooks kicked in the front door of someone's residence and stole approximately $400 worth of items, including personal papers, savings bonds, a gold ring and a piggy bank. (PSR ¶ 47)
On August 13, 2010, Brooks unlawfully entered the Delta Missouri High School, stole twenty to thirty dollars in cash, approximately $500 worth of CDs and DVDs, and then set the building on fire. (PSR ¶ 48)
On January 27, 2011, the Cape Girardeau County Sheriff's Department executed a search warrant at Brooks' residence and recovered a number of items associated with the manufacture of methamphetamine, including a used "shake and bake" meth lab. (CR, 13) After being advised of and waiving his Miranda rights, Brooks stated that he had received the lab from co-defendant Jerrod Landan Steger. Steger gave Brooks a small amount of methamphetamine in exchange for Brooks disposing of the lab. Id.
Brooks also admitted that he had provided pseudoephedrine pills on numerous occasions to co-defendant Mansfield McMullin and others for use in manufacturing methamphetamine, and was present on a number of occasions when those individuals manufactured methamphetamine. Id. The investigation revealed that Brooks had allowed McMullin and others to manufacture methamphetamine at his residence during the period of the conspiracy on at least one occasion, yielding approximately 21 grams. (CR, 14)
Based on interviews and pharmacy records, DEA agents showed that Brooks and other members of the organization frequently traveled to cities outside of southeast Missouri to obtain pseudoephedrine pills under circumstances consistent with a methamphetamine manufacturing conspiracy. (CR, 15)
Brooks was arrested on the state charges on January 27, 2011, and was convicted on March 28, 2011 in the Circuit Court of Cape Girardeau, County Missouri for the two Burglaries, the Thefts and the Arson, and sentenced to concurrent terms of three years in prison for the Burglaries and seven years for the arson. (PSR ¶¶ 47, 48) On July 26, 2011, the execution of the remainder of the sentence was suspended and Brooks was placed on five years of probation. Id.
On January 19, 2012, Brooks was indicted in the United States District Court for the Eastern District of Missouri at Cape Girardeau, and on April 19, 2012 was charged in one count of a superseding indictment with conspiracy to manufacture 50 grams or more of a mixture or substance containing methamphetamine in violation of Title 21 United States Code Sections 841(a)(1) and 846, and punishable under Title 21 United States Code Section 84(b)(1)(B)(viii). (CR, 1-2)
Brooks pleaded guilty to the indictment on July 23, 2012, and a Presentence Investigation Report (PSR) was ordered. Therein, Brooks' base offense level was 32 pursuant to U.S.S.G. § 2D1.1(a)(5) because the offense involved at least 500 grams, but less than 1.5 kilograms of a mixture or substance containing methamphetamine. (PSR ¶ 35) A four-level reduction in the offense level applied because Brooks was a minimal participant in the offense, as did another three-level reduction for acceptance of responsibility and timely notification of his intent to plead guilty. (PSR ¶¶ 38, 42) The resulting total offense level was 25. (PSR ¶ 44) Brooks was assigned two criminal history points for the burglary and theft at the residence in June of 2010 (PSR ¶ 47), and another two points for the burglary, theft and arson at the Delta Missouri High School which he had committed in August of 2010 (PSR ¶ 48), resulting in a criminal history category of III. (PSR ¶ 50) With a Total Offense Level of 25 and a Criminal History Category of III, Brooks' advisory guidelines range was 70 to 87 months of incarceration. (PSR ¶ 77)
Brooks filed an objection to the PSR, stating that the safety valve should apply because all of his criminal history points came from one set of conduct, and that he had no criminal history points at the time that he committed the instant offense. (CR, 25-27)
This Court overruled Brooks' objections, finding that the prior convictions were separate offenses from the drug conspiracy and because they had taken place prior to the commission of the instant offense, the points were properly assessed and therefore made Brooks ineligible for the safety valve reduction. (Transcript of Sentencing Hearing, "TRS Sent, " p. 4) This Court did, however, grant a downward variance from the recommended guideline range and sentenced Brooks to 60 months' imprisonment, the mandatory minimum sentence. (TRS Sent, p. 16)
Brooks appealed, alleging that this Court erred when it concluded that he had four criminal history points for the prior convictions, and declined to interpret 18 U.S.C. § 3553(f) as limiting the assessment of criminal history points for convictions occurring prior to the commission of the instant offense. Brooks also raised for the first time on appeal, an argument that the statutory mandatory minimum sentence as applied to him is unconstitutional because it precluded the District Court from fashioning an individualized sentence in his case. Brooks did not appeal the lack of a Government sponsored motion for downward departure based upon the provision of substantial assistance.
In United States v. Brooks, 722 F.3d 1105 (8th Cir 2013), The Court of Appeals rejected all of Brook's arguments, finding that the District Court did not clearly err in calculating his criminal history and that Brooks was properly denied safety valve relief as a result. The Court of Appeals also determined, in keeping with precedent, that Brooks' constitutional argument was foreclosed by Eighth Circuit law.
Brooks' petition for rehearing and rehearing en banc were both denied in the Court of Appeals for the Eighth Circuit and Brooks filed a Petition for Writ of Certiorari to the United States Supreme Court, which was denied on November 12, 2013. Brooks v. United States, 134 S.Ct. 630 (2013).
On January 7, 2014, Brooks filed a petition requesting the Court compel the government to file a motion for downward departure as specific performance of a plea agreement with the United States. The petition was denied this day by written memorandum and order.
Brooks subsequently filed a motion to vacate the sentence pursuant to 28 U.S.C. § 2255, herein.
II. NEED FOR EVIDENTIARY HEARING AND BURDEN OF PROOF
28 U.S.C. § 2255 provides, in pertinent part:
Unless the motion and the files and records of the case conclusively show that the prisoner is not entitled to relief, the court shall... grant a prompt hearing thereon.
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Court states:
The motion, together with all the files, records, transcripts, and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits in the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified.
When a petition is brought under § 2255, the petitioner bears the burden of establishing the need for an evidentiary hearing. In determining whether petitioner is entitled to an evidentiary hearing the court must take many of petitioner's factual averments as true, but the court need not give weight to conclusory allegations, self interest and characterizations, discredited inventions, or opprobrious epithets. United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). A hearing is unnecessary when a Section 2255 motion (1) is inadequate on its face, or (2) although facially adequate is conclusively refuted as to the alleged facts by the files and the records of the case. Id. at 225-6. See also United States v. Robinson, 64 F.3d 403 (8th Cir. 1995); Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995).
When all the information necessary for the court to make a decision with regard to claims raised in a 2255 motion is included in the record, there is no need for an evidentiary hearing. Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993). An evidentiary hearing is unnecessary where the files and records conclusively show petitioner is not entitled to relief. United States v. Schmitz, 887 F.2d 843, 844 (8th Cir. 1989); Dall v. United States, 957 F.2d 571, 573 (8th Cir. 1992).
III. BURDEN OF PROOF - INEFFECTIVE ASSISTANCE OF COUNSEL.
In order to prevail on a theory of ineffective assistance of counsel, the petitioner must demonstrate two separate things; that counsel's representation fell below an objective standard of reasonableness (was constitutionally deficient), and secondly that counsel's deficient performance materially and adversely prejudiced the outcome of the case. Furnish v. United States of America, 252 F.3d 950, 951 (8th Cir. 2001) While counsel has a duty to make reasonable investigations and decisions, "in determining whether counsel's performance was deficient, the court should indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Collins v. Dormire, 240 F.3d 724, 727 (8th Cir. 2001) (citing Strickland, 466 U.S. at 689)
In order to prove that counsel's error was prejudicial, petitioner must prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceedings would have been different." Strickland, 466 U.S. at 694. A reasonable probability has been described as "a probability sufficient to undermine confidence in the outcome." Id. However, the reviewing court need not address the issue of counsel's performance if it determines that the movant "suffered no prejudice from the alleged ineffectiveness." Pryor v. Norris, 103 F.3d 710, 712 (8th Cir. 1997)
IV. BURDEN OF PROOF - PROSECUTORIAL MISCONDUCT
In order to prevail on a claim of prosecutorial misconduct, a defendant must first show that the prosecutor's conduct was improper, and secondly that the prosecutor's improper actions prejudicially affected the defendant's substantial rights so as to deprive him of a fair trial. United States v. Mullins, 446 F.3d 750, 757 (8th Cir. 2006) If the actions were in fact improper, the court should determine if they deprived the defendant of a fair trial by examining the cumulative effect of the misconduct, the strength of the properly admitted evidence of the defendant's guilt, and what curative actions, if any were undertaken by the trial court. Id.
A. NO VIOLATION OF STATE COURT PLEA AGREEMENT.
In his first stated ground for relief, Brooks claims in effect that his indictment in the United States District Court was a violation of the plea agreement that he had with the State Prosecutor.
AUSA Swingle negotiated a plea with defendant in state court that no drug charges would be filed. Mr. Swingle also knew i was puchasing psudephedrine for my co-defendants at that time. This same conduct is charged here and creates a breach of plea agreement. Violation of state plea aggravates instant offense and make the indictment prejudicial. Furthermore, AUSA Swingle had the burden to inform staff lawyers in the AUSA Office of the plea agreement he had made with me. Allowing the government to breach a promise that indused a guilty plea violates Due Process. (§ 2255 Motion p. 4)
Swingle, who then the elected Prosecuting Attorney for Cape Girardeau County, told Brooks that if he pleaded guilty in state court to two unrelated cases, a burglary and a separate burglary and arson case, that he would not file charges against Brooks in state court for a methamphetamine lab that was recovered during the course of the investigation. (Brooks' Exhibits Document 1-2 pp. 3-4) Brooks pleaded guilty and got the benefit of his bargain, namely the State prosecutor did not file state charges against Brooks for the meth lab, doing precisely what the State Court Prosecutor had promised that he would do. Mr. Brooks fails to understand that the United States was not a party to that plea agreement, nor are they bound by it.
Generally speaking, the determination as to whether there has been a breach of a plea agreements is governed by the law of contracts. Puckett v. United States, 556 U.S. 129, 137 (2009). In this instance, Brooks, who has the burden of production, has failed to prove that the United States was a party to his plea agreement with the Cape Girardeau County Prosecutor's Office. The letter from Mr. Swingle to Brooks' attorney relating the details of the plea agreement is perfectly clear that he was speaking only for the State of Missouri and not the federal government. (Brooks' Exhibits Document 1-2 pp. 3-4) It goes without saying that someone who is not a party to a contract can't be in breach of it.
Brooks states his conclusion that "Swingle had the burden to inform staff lawyers in the AUSA Office of the plea agreement he had made with me, " (§ 2255 Motion p. 4) but cites no law, rule or case that imposes that duty upon a state prosecutor. Nor does the agreement itself impose any such requirement upon the state prosecutor, although it certainly would have been permissible for Brooks to have negotiated that as a condition of his plea in the state court proceeding. (Brooks' Exhibits Document 1-2 pp. 3-4)
Secondly, the state prosecutor would not have had the authority to restrict a federal prosecution, as state prosecutors cannot bind federal prosecutors without the latter's knowledge and consent. Hendrix v. Norris, 81 F.3d 805, 807 (8th Cir. 1996). See also United State v. Glauning, 211 F.3d 1085, 1087 (8th Cir. 2000) (local authorities had no ability to bind federal government, where defendant claimed county prosecutor and police officer promised no federal prosecution if she cooperated) Here, Brooks again fails in his burden of production simply because there was no such deal between federal and state authorities.
Because it clearly appears from the record in this respect that the petitioner is not entitled to relief, this ground will be dismissed without ...