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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

vs. CASE NO. 4:01cr33-SPM/AK

MICHAEL LAMAR BROWN,

Defendant.

______________________________/

ORDER

THIS CAUSE comes before the Court for consideration of the magistrate

judge’s report and recommendation dated April 4, 2006 (doc. 79). Defendant has

been furnished a copy of the report and recommendation and filed objections

(doc. 80). Pursuant to Title 28, United States Code, Section 636(b)(1), I find that

the report and recommendation is correct and should be adopted by the Court.

Defendant pleaded guilty to one count of manufacturing more than 100

marijuana plants, in violation of Title 21, United States Code, Sections 841(a)

and 841(b)(1)(B)(vii). Because the Government filed a notice that Defendant had

at least one prior felony drug conviction, he was subject to an enhanced statutory

penalty that included a ten year minimum mandatory sentence up to a maximum

of life imprisonment. 21 U.S.C. § 851(b). Defendant was sentenced to ten years

imprisonment in accordance with the minimum mandatory.

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Defendant now argues that his defense attorney rendered ineffective

assistance by failing to conduct a pretrial investigation, failing to file a motion to

suppress, failing to properly advise him about the minimum mandatory sentence,

failing to foster his cooperation with the government, failing to negotiate a plea

bargain with the government, and failing to challenge his prior convictions. 

Because Defendant has not demonstrated any prejudice resulting from his

attorney’s performance, he is not entitled to relief.

To prevail on a claim of ineffective assistance of counsel, a defendant

must establish two elements: (1) that counsel’s performance fell below the wide

range of reasonably competent performance under prevailing professional

standards and (2) that but for counsel’s deficient performance, the outcome of

the proceedings probably would have been different. Strickland v. Washington,

466 U.S. 668, 687-89 (1984). In evaluating counsel’s performance, “every effort

[must] be made to eliminate the distorting effects of hindsight . . . [and] a court

must indulge in a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Id. at 689.

The foregoing standard applies to all types of ineffective assistance of

counsel claims, including ineffective assistance in entering a guilty plea. Stano v.

Dugger, 921 F.2d 1125, 1149-51 (11th Cir. 1991). A guilty plea must be entered

into with the advice of competent counsel regarding alternative courses of action

open to the defendant. Id. When counsel does not provide the defendant with

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reasonably competent advice, a guilty plea may be deemed involuntary and, as

such, open to attack. Id. 

To be successful in the attack, a defendant must show that but for the

incompetent advice of counsel, he would not have pleaded guilty and, instead,

would have insisted on going to trial. Id. at 1150 (quoting Hill v. Lockhart, 474

U.S. 52, 59 (1985)). Where the alleged deficiency of counsel is “failure to

investigate or discover potentially exculpatory evidence the determination of

whether the error prejudiced the defendant by causing him to plead guilty rather

than go to trial will depend on the likelihood that discovery of the evidence would

have led counsel to change his recommendation as to the plea.” Id. “This

assessment, in turn, will depend in large part on a prediction whether the

evidence likely would have changed the outcome of a trial.” Id.

In this case, Defendant complains that his attorney failed to conduct a

pretrial investigation. Even assuming that the attorney’s investigation was

deficient, Defendant fails to explain what evidence his attorney would have found. 

The record is devoid of any indication that Defendant’s attorney would have

found exculpatory evidence that was likely to change the outcome of this case

had it proceeded to trial. Accordingly, Defendant has failed to demonstrate

prejudice to show that he is entitled to relief on this claim.

Defendant also complains that his attorney was ineffective for failing to file

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1

 Miranda v. Arizona, 384 U.S. 436 (1966).

a motion to suppress statements he made without first being given a Miranda1

warning. Had such a motion been filed, it would not have been successful. 

Defendant made the statements to law enforcement officers on June 28, 2001. 

He was not in custody at the time he made the statement, nor was he taken into

custody immediately afterward. Several weeks passed until Defendant was

arrested on July 27, 2001. 

The protections of Miranda apply to custodial interrogations. They have

no application to statements made by a defendant during an investigative stop

unless the defendant is subjected to additional pressure comparable to formal

arrest. United States v. Acosta, 363 F.3d 1141, 1148-50 (11th Cir. 2004); United

States v. Torking, 874 F.2d 1441, 1445-46 (11th Cir. 1989). In this case, the

questioning occurred in Defendant’s home in an atmosphere “substantially less

‘police dominated’ than that surrounding the kinds of interrogation at issue in

Miranda itself . . . .” Acosta, 363 F.3d at 1150 (quoting Berkemer v. McCarty,

468 U.S. 420, 438-39 (1984)). Defendant cites to no particular circumstances

that would put his questioning on the level of a custodial interrogation. 

Accordingly, Defendant has failed to demonstrate an entitlement to relief on this

ground.

Defendant also complains that his attorney gave him incorrect information

concerning the minimum mandatory sentence. When Defendant entered his

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guilty plea, however, Defendant acknowledged that he was facing a ten-year

minimum mandatory term. Doc. 37, pp. 15-18. He acknowledged that he would

be sentenced to “[w]hatever Judge Mickle gives me” and that at least a ten year

sentence would be imposed. Doc. 37, pp. 18-23. Defendant also acknowledged

that no one had made him promises as to any sentence that might be imposed. 

Doc 37, pp. 23-24. To the extent, therefore, Defendant claims that he entered

into a guilty plea based on an expectation, as communicated by his attorney, that

he would be sentenced below the minimum mandatory sentence, the claim is

refuted by the plea colloquy. Accordingly, Defendant has failed to demonstrate

an entitlement to relief on this ground.

Defendant’s remaining claims relate to sentencing issues that do not

undermine Defendant’s decision to plead guilty. Instead, the claims focus on

sentencing prejudice as a result of Defendant’s attorney’s poor performance. 

Defendant argues that his attorney was ineffective for failing to foster his

cooperation with the government, failing to negotiate a plea bargain with the

government, failing to review the presentence investigation report with

Defendant, and failing to challenge Defendant’s prior convictions. The goal of all

of these actions would be to free Defendant from the ten-year minimum

mandatory sentence. Because Defendant has failed to demonstrate that any of

these actions were likely to free him from the minimum mandatory and to thus

result in a different sentence, his claims must be denied.

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With regard to Defendant’s cooperation, the Government retained the

discretion to file or not file a substantial assistance motion on Defendant’s behalf. 

Even assuming that Defendant’s attorney performed deficiently in failing to turn

over certain maps to the Government and failing to encourage Defendant’s

cooperation, law enforcement eventually interviewed Defendant and investigated

the matters he disclosed, including the information on the maps. The maps

revealed additional plots of marijuana that Defendant himself had planted and

had later been harvested by someone else. The Government explained that

because of Defendant’s criminal history and lack of jail time, “the [G]overnment

was not particularly interested in the marijuana cultivation information,” and

“[i]ndeed defendant provided more information about his own marijuana growing

than that of anyone else.” Doc. 61, pp. 5-6. The Government’s position was

“that a substantial assistance motion would not be filed unless [D]efendant

produced extra-ordinary results and that there would be no such motion if all he

did was cooperate against other marijuana growers.” Doc. 61, p. 5. This position

was based on the Government’s assessment that information provided by

Defendant should be against someone who “needed to be in jail more than

[Defendant] does.” Doc. 61, p. 5. 

Under the circumstances, it is not likely that Defendant would have

received a substantial assistance motion even if his attorney encouraged

Defendant to cooperate and timely turned over the maps. The Government

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eventually reviewed all of the information Defendant provided and decided that

his cooperation was not substantial. Defendant cannot compel the Government

to file a substantial assistance motion on his behalf. Accordingly, Defendant has

failed to demonstrate an entitlement to relief on this ground.

Defendant’s remaining ineffective assistance of counsel claims are

similarly without merit. Defendant presumes that by challenging his prior

convictions or by bargaining with the Government, Defendant’s attorney could

have placed Defendant in a position where the ten-year minimum mandatory

sentence did not apply. Defendant, however, had nothing to bargain with when

he entered his guilty plea and he makes no substantiated argument now that a

challenge to his prior convictions would have been successful. 

The Government states that it did not make any offer to negotiate a plea

agreement for a sentence below the ten-year minimum mandatory term, and was

not willing to make such an offer. Doc. 61, p. 7. Furthermore, at sentencing,

Defendant was precluded from challenging his 1994 felony drug conviction

because it was more than 5 years old. 21 U.S.C. § 851(e); United States v.

Williams, 954 F.2d 668, 673 (11th Cir. 1992). Thus, even if Defendant’s attorney

had tried to negotiate a plea bargain or tried to challenge the prior convictions, he

would not have been successful and the same sentence would have been

imposed. Accordingly, Defendant has not demonstrated an entitlement to relief

on these grounds.

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2

 United States v. Booker, 543 U.S. 220 (2005).

Defendant makes other claims concerning review of the presentence

investigation report and acknowledgment of prior convictions. These claims

should have been raised on direct appeal, but nevertheless do not entitle

Defendant to relief because, as explained above, he can show no prejudice. 

United States v. Weaver, 905 F.2d 1466, 1481-82 (11th Cir. 1990) (no reversible

error in failing to inquire whether defendant confirmed or denied prior conviction

since defendant was precluded from challenging conviction due to its age);

United States v. Aleman, 832 F.2d 142, 144 n.6 (11th Cir. 1987) (court not

required to specifically ask defendant whether he read the presentence

investigation report and reviewed it with his attorney).

Finally, Defendant argues that he should be allowed to amend his petition

to include a Booker2 claim Leave to amend was properly denied because (1)

Booker is not retroactively applicable to cases on collateral review, Valera v.

United States, 400 F.3d 864, 867-68 (11th Cir. 2005); (2) Booker does not apply

to prior convictions, United States v. Gallegos-Aguero, 409 F.3d 1274, 1276

(11th Cir. 2005); and (3) Defendant admitted to his prior felony drug convictions

in the statement of facts supporting his guilty plea (doc. 19).

Accordingly, it is hereby ORDERED as follows:

1. The magistrate judge’s report and recommendation (doc. 79) is

ADOPTED and incorporated by reference in this order.

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2. Defendant’s motion to vacate, set aside, or correct sentence (doc.

52) is denied.

3. Defendant’s motion to supplement (doc. 68) is denied.

4. The Court certifies that Defendant has failed to make a substantial

showing of the denial of constitutional right. Therefore, no certificate of

appealability will be issued.

DONE AND ORDERED this 25th day of September, 2006.

 s/ Stephan P. Mickle 

Stephan P. Mickle

United States District Judge

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