WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Damon Forbes's ("Movant" or "Forbes") Objections [306] to Magistrate Judge Gerrilyn G. Brill's Final Report and Recommendation ("R&R") [303]. The R&R recommends that Forbes's Petition under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("Motion to Vacate") [288] be denied, and that a certificate of appealability be denied.
On April 7, 2009, a grand jury indicted Forbes on one count of conspiracy to possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(a)(ii) [1]. On September 10, 2009, the indictment was unsealed. On September 18, 2009, after retaining Ira Bradley Brownlow, Jr. ("Brownlow"), Forbes surrendered. Also on September 18, 2009, Forbes, represented by Brownlow, was arraigned on the indictment and pleaded not guilty.
On September 22, 2009, the Government filed its "Notice of Sentencing Enhancement Pursuant to 21 U.S.C. § 851" (the "Section 851 Enhancement") [43], based on Forbes's prior conviction for conspiracy to possess cocaine with intent to distribute.
On October 8, 2009, Forbes appeared before the Court and pursuant to a negotiated plea agreement (the "Plea Agreement" [65.1]), pleaded guilty to one count of conspiracy to possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(a)(ii). The Plea Agreement provides:
(
At his change of plea hearing, on October 8, 2009, the Court advised Forbes of his rights and made sure that he understood the charge to which he was pleading guilty. (Tr. Plea Hr'g 5:17-12:2; 22:18-24:24). Forbes acknowledged that a mandatory minimum sentence of 240 months imprisonment would have to be imposed and Forbes stated that he understood the terms of the Plea Agreement. (
On November 1, 2009, Forbes wrote a letter to the Court and expressed that he was "nervous and confused" when he appeared at his plea hearing. (Nov. 1 Letter [168 at 1-2]). Forbes wrote that, when Brownlow visited him in jail one week after his initial appearance, "he informed me that if I go trial and lose I'll get life!" (
Two weeks later, Forbes again sent a letter to the Court. Forbes stated that he had had financial problems and that his daughter had been in an accident and he was unsure about her ability to return to normal. Forbes wrote: "Judge I made a bad mistake by trying to get back into the drug business by buying sum [sic] kilo from a friend which after a couple of try's [sic] I never did get any!" (Nov. 30 Letter [168 at 3-4]). Forbes stated that "they offered me 20 yrs." and again asked, "Judge please look into this for me." (
On December 8, 2009, attorneys Mark Yuracheck and Bruce Harvey entered their appearances for Forbes, in substitution for Brownlow [110].
On December 11, 2009, Brownlow moved to withdraw his representation of Forbes, which the Court granted [119; 120].
On December 10, 2009, Forbes moved to withdraw his guilty plea. (Mot. to Withdraw Plea [118]). Forbes claimed that he has an earnest desire to go to trial, that at the time he pled he had not personally reviewed the discovery the Government produced, and that Brownlow did not give him a realistic evaluation of his sentencing exposure or the benefits of a plea.
On April 28, 2010, the Court denied Forbes's Motion to Withdraw Plea. The Court found that Forbes had close assistance of counsel, and that his plea was knowing and voluntary, including because Forbes fully understood the consequences of his decision. (April 28th Order [169]). The Court also found that Forbes's delay in moving to withdraw his plea cast doubt on Forbes's claimed adamancy that he always wanted to go to trial and, if granted, would result in prejudice to the Government and depletion of judicial resources. (
On May 17, 2011, the Court sentenced Forbes to the mandatory minimum sentence of 240 months imprisonment [273]. The Government did not move to reduce Forbes's sentence for substantial assistance because Forbes "dramatically minimized his conduct and subsequently moved to withdraw his plea." (Tr. of Sentencing Hr'g [287] at 10:14-20).
On May 17, 2012, Forbes, represented by new counsel Lynn Fant-Merritt and Victoria Brunner, filed his Motion to Vacate. Forbes raises the following claims:
The Government opposed Forbes's Motion to Vacate.
On February 13, 2013, Magistrate Judge Brill issued her Final R&R, recommending that Forbes's Motion to Vacate be denied. The Magistrate Judge found that Brownlow did not render ineffective assistance, that many of Forbes's claims were contradicted by the record, and that Forbes was not entitled to relief on his claim that his plea was not voluntary because that claim was based solely on Brownlow's alleged ineffective assistance. The Magistrate Judge also recommended that a Certificate of Appealability be denied because Forbes failed to make a substantial showing of the denial of a constitutional right.
On February 28, 2013, Petitioner filed his Objections to the R&R.
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59;
"Ineffective assistance of counsel claims are governed by the standard set forth by the Supreme Court in
A movant also must show that counsel's ineffectiveness prejudiced the movant.
Forbes asserts that Brownlow was ineffective in advising Forbes to enter into the Plea Agreement because Forbes gave up significant rights without receiving any corresponding benefits. The Magistrate Judge found that the Plea Agreement, at least, reduced the possibility that Forbes would receive more than the mandatory minimum sentence and provided for the possibility that Forbes's cooperation could result in a downward departure motion. (R&R at 6-8).
In his Objections, Forbes argues that he did not receive a benefit from the Government's promise "to recommend a sentence at the low end of the adjusted guideline range" because there was no reasonable possibility that he would receive a sentence higher than the mandatory minimum of 240 months imprisonment. Forbes claims his guideline range was lower than the mandatory minimum sentence and that the facts did not support a sentence higher than the mandatory minimum. The Court disagrees.
In the Plea Agreement, Forbes acknowledged that the mandatory minimum sentence was 240 months imprisonment, that the maximum sentence was life imprisonment, that the Court had the discretion to "impose a sentence up to and including the statutory maximum . . . and that no one can predict his exact sentence" at the time the Plea Agreement was signed. (Plea Agreement ¶ 7). At the plea hearing, the Court asked Forbes:
(Tr. Plea Hr'g 25:17-25). The Court then explained the Sentencing Guidelines and the role they would play in the Court's determination of Forbes's sentence:
(
(
Forbes next objects to the Magistrate Judge's finding that Forbes benefitted from the Plea Agreement based on the "possibility of Forbes's cooperation and a downward departure motion." (Obj. at 4). Forbes argues that Brownlow should have known that Forbes could only provide third-party cooperation and that the Government was not interested in third-party cooperation. Forbes asserts that he "explained to his attorney that he did not know much about the defendants charged in the case," that he "could provide information about the conversations he had with co-defendant Jones, but he did not know co-defendants Ayers or White," and that "although Petitioner knew co-defendant Franklin, he had never had any drug dealings with Franklin and never observed Jones and Franklin conduct any drug transactions." (Mot. to Vacate at 8). Based what was known to Brownlow at the time of Forbes's plea, Brownlow could have reasonably believed that Forbes might have qualified for a downward departure motion based on his own assistance, without considering the alleged third-party assistance.
Forbes alleges that he told Brownlow, "no later than October 27, 2009," that he wished to withdraw his guilty plea, and that Brownlow was ineffective in refusing to file a withdrawal motion. Forbes argues that "the delay in filing the motion to withdraw the plea was a factor repeatedly cited by the District Court in denying the motion [to withdraw his plea]." (Obj. at 22).
Forbes objects to the Magistrate Judge's conclusion that, even if Forbes's claim that he wanted to withdraw his plea no later than October 27, 2009, was true, Forbes failed to show that he was prejudiced. The Magistrate Judge found that Brownlow's refusal to file a motion to withdraw Forbes's guilty plea did not prejudice Forbes because the motion to withdraw would have been denied even if filed when Forbes claims he requested.
In its April 28, 2010, Order, the Court found that Forbes received "close assistance of counsel," that his plea was "knowing and voluntary," that Forbes fully understood the consequences of his decision, that his delay in moving to withdraw his guilty plea resulted in prejudice to the Government and, if granted, would further waste judicial resources. The Court also found that the facts did not present a credible reason to allow Forbes to withdraw his plea, including because Forbes did not claim that he was promised a more lenient sentence, and because he admitted his guilt at the plea hearing and in the two subsequent letters he wrote to the Court. The Court found that Forbes's concerns and anxiety about the sentence he faced, while apparently authentic, were not a reason to allow Forbes to withdraw his plea.
Although Forbes's delay in moving to withdraw his plea was a factor supporting the Court's denial of his motion, it was not the only reason. Even if Brownlow was ineffective in refusing to file the motion when Forbes requested — which the Count does not find — Forbes cannot show that there is a reasonable probability that, had Brownlow timely filed the motion, the Court would have allowed the guilty plea to be withdrawn. The Court agrees with the Magistrate Judge's conclusion that Forbes fails to establish that he was prejudiced by Brownlow's refusal to move to withdraw his plea when Forbes claims he requested. Forbes's objection on this ground is overruled.
Forbes argued in his Motion to Vacate that Brownlow, in moving to withdraw his representation of Forbes, was ineffective because he released confidential information, specifically a September 21, 2009, letter signed by Forbes instructing Brownlow to "confer with [the prosecutor] and tell him I desire to cooperate with the government in the prosecution of my case and the cases of my co-defendants." (Sept. 21 Letter [119.1 at 4]). In his Reply, Forbes states that he "did not raise counsel's release of confidential information as a separate claim. Rather, Mr. Forbes included the information to show that counsel was ineffective in his understanding of his duties to his client." (Reply [302] at 8). Forbes does not object to the Magistrate Judge's conclusion that this claim does not state a valid basis for relief under Section 2255. To the extent Forbes has not abandoned this claim, the Court agrees with the Magistrate Judge's conclusion that Forbes fails show that Brownlow was ineffective in allegedly releasing confidential information and finds no plain error in the conclusion reached.
Forbes claims that Brownlow was ineffective in failing, before Forbes entered his guilty plea, to provide to or review with Forbes the discovery in this case. Forbes asserts that Brownlow only discussed the Government's case against him and did not explore the possibility that Forbes had a buyer-seller defense. Forbes asserts that a "buyer-seller" defense has apparent support in the discovery. The Magistrate Judge found that Forbes does not specify what discovery materials he is now aware of (and was not aware of at the time of his plea) that would have motivated a decision to go to trial. (R&R at 13-14). The Magistrate Judge also found that, even if Brownlow did not specifically discuss all of the discovery and the possibility of a buyer-seller relationship, Brownlow was not ineffective because Forbes was advised of the elements of a conspiracy and that the evidence did not support a buyer-seller relationship defense. (R&R at 13-16).
In his Objections, Forbes argues that the Magistrate Judge erred in dismissing these claims without an evidentiary hearing, and that review of the discovery establishes a buyer-seller relationship defense and the existence of multiple conspiracies, as opposed to the single conspiracy charged in the indictment. Forbes contends that, at an evidentiary hearing, he would offer the discovery materials provided to Brownlow and his replacement counsel, and that the evidence consisted of DEA surveillance and incident reports, and wiretap applications. Although Forbes argues that "[i]t takes the whole of the discovery materials to establish the defense," Forbes fails even to summarize the information he claims supports that the buyer-seller defense applies. An evidentiary hearing is not required where the facts alleged are not "reasonably specific [and] non-conclusory."
Forbes next claims that Brownlow was ineffective in failing to advise him that he had viable defenses to the conspiracy charged. "Where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the `prejudice' inquiry [of the
To prove that a defendant was a member of a conspiracy, the Government must show that two or more persons entered into an agreement, that the defendant knew the agreement's general purpose, and that the defendant voluntarily participated in the agreement.
Here, the evidence shows that: on April 12, 2008, co-defendant Jones told Forbes that he was receiving a cocaine delivery in two days, and Forbes ordered from Jones ten kilograms of cocaine, at $20,200 per kilogram; on April 14, 2008, Jones told Forbes that the cocaine was not acceptable quality, but that he would have more cocaine the next day; on April 17, 2008, Jones drove to a residence where Forbes was located; and on April 22, 2008, Jones told Forbes that he was going to obtain the cocaine the next morning, and Forbes replied that he was "ready to work" and had the necessary money but needed to get it. (Tr. Plea Hr'g 38:5-18; Movant's Reply at 2). After hearing this evidence, and after he was advised of the elements of the crime,
This evidence does not support the existence of a "mere buyer-seller relationship" between Forbes and Jones. Instead, Forbes's statement that he was "ready to work," coupled with the large quantity of cocaine he attempted to purchase and his admission, in his second letter to the Court, that he "made a bad mistake by trying to get back into the drug business by buying sum [sic] kilo from a friend . . . after a couple of try's," supports that Forbes's involvement went beyond a simple attempt to purchase multiple kilograms of cocaine for his private consumption. Rather, it supports that Forbes shared in the common goal of the conspiracy alleged, specifically, to distribute a significant amount of cocaine.
Finally, Forbes argues that Brownlow was ineffective because he provided "completely inaccurate advice" when he told Forbes that he would receive a life sentence if he was convicted after a jury trial, but that, if he pleaded guilty pursuant to the Plea Agreement, he would receive a "term of imprisonment . . . in the single digits in terms of years." (Mot. to Vacate at 19). Forbes argues that he "was not realistically facing significantly more time had he gone to trial instead of entering a guilty plea than the twenty year minimum mandatory that he received," and that Brownlow's advice that he "would" receive a life sentence if he proceeded to trial "is a different matter than what the Court discussed" at the plea hearing. (Obj. at 30-31).
The Magistrate Judge correctly found that Forbes's claim that Brownlow misinformed him of the consequences of a conviction after trial is clearly contradicted by what the Court told Forbes, and by what Forbes said he understood, at his plea hearing. As the Court already discussed, Forbes did in fact face a life sentence if he proceeded to trial and he agreed at the plea hearing that a life sentence was the authorized maximum punishment, and that he fully understood that he could receive the maximum sentence if the Court believed it was appropriate. Forbes's current claim that he was misled by Brownlow's advice is discredited by the record. At the plea hearing, the Court specifically asked Forbes whether any promise had been made to him other than those in the Plea Agreement, whether anyone had promised what actual sentence he would receive, whether anyone forced him to plead guilty, whether he disagreed with anything Brownlow told him, and whether anything the Court told him was different from what Brownlow told him. Forbes answered "no" to each question, and twice affirmed that he was satisfied with his counsel and that he thought it was in his best interest to plead guilty. Forbes's sworn statements at the plea hearing carry great weight and "there is a strong presumption that the statements made during the colloquy are true."
To the extent Forbes alleges that Brownlow's prediction that Forbes would receive a "term of imprisonment . . . in the single digits in terms of years" was not made in good faith, the Plea Agreement specifically provided for the possibility of Forbes's cooperation and a downward departure motion. If Forbes's involvement in the conspiracy was limited, and other circumstances warranted it, a single-digit sentence was possible.
Forbes alleges that his plea was not voluntary because of Brownlow's alleged ineffective assistance. The Magistrate Judge correctly determined that this claim also must be dismissed. (R&R at 18). To the extent Forbes objects to the Magistrate Judge's conclusion, his objections are based solely on his arguments that Brownlow was ineffective. Because the Court found that Brownlow did not provide ineffective assistance of counsel, this objection is overruled.
A district court "must issue or deny a certificate of appealability [under 28 U.S.C. § 2253(c)] when it enters a final order adverse to the appellant."
The Court agrees with the Magistrate Judge that Forbes has not made a substantial showing of the denial of a constitutional right. Forbes fails to demonstrate that a reasonable jurist could debate whether he states a valid claim for relief under Section 2255. Forbes's objection is overruled, and a certificate of appealability is denied.
For the foregoing reasons, and having reviewed de novo those findings and recommendations in the R&R to which Forbes asserted an objection, and having reviewed for plain error the remaining findings and recommendations in the R&R to which an objection was not asserted,
The evidence also does not support Forbes's claimed defense — to the extent it was properly raised in his Motion to Vacate — that, at most, the evidence supports the existence of multiple conspiracies and that "Jones and White, working together had different buyers who were unconnected, including Mr. Forbes." (Obj. at 26). That Forbes states in his Reply that "Jones was the supplier and head of a multi-kilogram cocaine trafficking conspiracy that distributed cocaine," (Movant's Reply at 2), and that Forbes's actions — had he successfully obtained the ten kilograms of cocaine he sought and "work[ed]" like he had intended — would have facilitated the conspiracy as a whole, supports that Forbes was engaged in the single conspiracy alleged in the indictment, regardless of whether he knew the other conspirators.
