IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION NO. 04-532

:

v. :

:

SHAWN BROWN : CIVIL ACTION NO. 11-4183

MEMORANDUM

Bartle, J. October 12, 2011

Before the court is the motion of defendant Shawn Brown

("Brown") to vacate, set aside, or correct his sentence under 28

U.S.C. § 2255. The government has also moved to dismiss the

petition under Rule 4(b) of the Federal Rules Governing § 2255

Proceedings.1

On September 7, 2004, a grand jury issued a three-count

indictment charging Brown with: (1) possession with intent to

distribute cocaine, in violation of 21 U.S.C. §§ 841(b)(1),

(b)(1)(C); (2) use of a firearm during and in relation to a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and (3)

being a felon in possession of a firearm, in violation of 18

U.S.C. §§ 924(e), (g). Brown was convicted by a jury on

January 26, 2005 of all counts. He was sentenced to 420 months'

imprisonment and a term of supervised release of five years. See

1. Under this rule, a district court may dismiss a § 2255

petition "[i]f it plainly appears from the face of the motion and

any annexed exhibits and prior proceedings in the case that the

movant is not entitled to relief."

Case 2:04-cr-00532-HB Document 85 Filed 10/12/11 Page 1 of 14
United States v. Brown, No. 04-532 (E.D. Pa. June 14, 2005). Our

Court of Appeals affirmed his conviction, but vacated his

sentence and remanded the action to this court for resentencing. 

See United States v. Brown, 241 F. App'x 890 (3d Cir. 2007). 

After resentencing, Brown filed a second appeal. His sentence

was affirmed. See United States v. Brown, 385 F. App'x 147

(3d Cir. 2010). 

Brown, acting pro se, has filed a § 2255 petition in

which he alleged a deprivation of his Sixth Amendment right to

effective assistance of counsel. He outlines the purported

errors made by his court-appointed counsel at trial, at his

sentencings, and on his appeals. Brown requests that we vacate

his conviction and order a new trial.

I.

The underlying facts, in the light most favorable to

the government, are as follows. On February 14, 2004, two

Philadelphia police officers spotted Brown while conducting

surveillance from the roof of an abandoned building at 2200

Pacific Street in Philadelphia. Brown was sitting in the

driver's seat of a parked vehicle with the window rolled down. 

Michael Maresca, one of the officers, observed Brown

and another man, Gabriel Voluntad, engage in a series of drug

transactions. On each occasion, an individual would approach

Voluntad on the street. Voluntad would then escort the

individual to Brown's car. Inside the car, Brown handed the

individual a clear plastic bag in exchange for money. Officer

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Maresca testified that he could see clearly the interior of

Brown's vehicle because of a nearby streetlight. Based on his

experience in law enforcement, Maresca believed that Brown's

behavior was consistent with the sale of narcotics. 

Shortly thereafter, Brown became aware of the officers

on the roof and fired two shots at them. One officer radioed for

back-up. Additional police surrounded Brown's vehicle. 

Nonetheless, Brown sped away and led the officers on a high-speed

chase. Amid the commotion, one of the officers saw a firearm in

Brown's hand.

Brown hit a police car and pointed his gun at another

officer while continuing his flight. As two officers drove

towards Brown's car, he fired at their vehicle before crashing

into it. Brown again pointed his firearm at police, at which

point an officer jumped into his car and disarmed him. Police

discovered 58 plastic packets of heroin in Brown's possession

when he was arrested.

Voluntad also fled from police. He was apprehended

later that evening attempting to flush narcotics down a toilet in

a nearby bar. Voluntad was arrested by Philadelphia police

officers and charged with: (1) manufacturing, delivering, or

possessing with intent to manufacture or deliver a controlled

substance; (2) conspiracy to possess with intent to distribute a

controlled substance; and (3) knowing or intentional possession

of a controlled substance. See 35 Pa. Cons. Stat. Ann. § 780-

113. However, the state charges against him were dismissed in

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November 2004. See Commonwealth v. Ferrell, MC-51-CR-0219091-

2004 (Phila. Ct. Com. Pl. Nov. 4, 2004). 

Brown was the subject of a federal indictment. As

stated previously, Brown was convicted on all counts after a two

day jury trial. In the presentence report, the Probation Office

determined that Brown had two prior robbery convictions and two

prior drug convictions. Based on this information, the court

identified Brown as an armed career criminal under the Armed

Career Criminal Act, 18 U.S.C. § 924(e). Under that statute, a

defendant qualifies as an armed career criminal if he has been

convicted of three or more violent felonies or serious drug

offenses. The court sentenced Brown to 300 months' imprisonment

on Counts One and Three and a consecutive sentence of 120 months

on Count Two, resulting in a total sentence of 420 months'

imprisonment. Brown was represented at trial and his initial

sentencing by Nino V. Tinari, Esquire.

Brown filed his first appeal on June 12, 2006. On

appeal, he challenged the sufficiency of the evidence as well as

an evidentiary ruling made by the district court. The Court of

Appeals denied both of those claims.

Brown challenged his sentence on two grounds.

Brown maintained that the government had not met its burden of

proving that he was an armed career criminal because it failed to

introduce proper evidence of Brown's qualifying prior convictions

through a state court complaint, certified copy of the judgment,

or a guilty plea colloquy. See Shepard v. United States, 544

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U.S. 13, 26 (2005). He maintained that his two prior robbery

convictions were not "separate" offenses and that his drug

convictions were not "serious" offenses as required under the

language of § 924(e).

Brown also asserted that the court had imposed a

sentence in excess of the statutory maximum for Count One,

possession of cocaine with intent to distribute. That offense

carries a maximum sentence of 20 years (240 months) unless the

defendant has a prior conviction for a felony drug offense, in

which case the maximum is 30 years (360 months). See 21 U.S.C.

§ 841(b)(1)(C). However, that section also provides that:

No person who stands convicted of an offense

under this part shall be sentenced to

increased punishment by reason of one or more

prior convictions, unless before trial, or

before entry of a plea of guilty, the United

States attorney files an information with the

court ... stating in writing the previous

convictions to be relied upon.

Id. at § 851(a)(1). Because the government failed to file an

information, Brown argued that his sentence of 25 years (300

months) on Count One exceeded the statutory maximum. The Court

of Appeals agreed with Brown on these two issues and remanded for

re-sentencing. Brown was represented by William R. Spade, Jr.,

Esq. during his first appeal, re-sentencing, and his second

appeal. 

On November 16, 2007, the district court re-sentenced

Brown. Although he did not qualify as an armed career criminal,

the court found that Brown was a career offender under U.S.S.G.

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§ 4B1.1. The advisory range under the United States Sentencing

Guidelines (the "Guidelines") was 360 months to life

imprisonment. Defense counsel did not object to this

calculation.

Brown made a motion for a downward departure based on

his rehabilitation efforts since conviction. The court

considered and ultimately rejected this motion. The court then

made findings with respect to the factors set forth in 18 U.S.C.

§ 3553(a). Based on these findings, the court once again

sentenced Brown to a total of 420 months' imprisonment. This

total represented: (1) 240 months' imprisonment on Count One;

(2) 180 months' imprisonment on Count Two, to run consecutively

to the sentence on Count One; and (3) 120 months' imprisonment on

Count Three, to run concurrently with the sentence on Count One.

Brown timely appealed on November 20, 2007. On appeal,

Brown challenged his re-sentencing on three grounds. First,

Brown asserted that the district court failed to cite a

legitimate reason for increasing his sentence on Count Two from

120 months to 180 months. Secondly, Brown argued that his

amended sentence was greater than necessary to satisfy the goals

of 18 U.S.C. § 3553(a). Finally, Brown maintained that the

district court violated his right to a trial by jury under the

Seventh Amendment by making factual findings regarding the nature

of his prior convictions that served to enhance his sentence. 

The Court of Appeals rejected all three arguments and affirmed

the revised sentence on June 30, 2010. See Brown, 385 F. App'x

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at 148. His timely petition under § 2255 is now before this

court. 

II.

Brown alleges in his pending § 2255 petition

ineffective assistance of counsel under the standard set forth in

Strickland v. Washington. 466 U.S. 668 (1984). In his pro se

petition, Brown contends that counsel at trial and his initial

sentencing was ineffective for failing to interview a potential

defense witness and failing to object to the district court's

calculation of Brown's criminal history points. He further

asserts that he received ineffective assistance of counsel during

his second appeal because counsel did not advance the arguments

that: (1) the career offender provision under U.S.S.G. § 4B1.1

is "extreme deterrence;" and (2) the district court failed to

"consider factors to justify [his] sentence," which was an

"unjustified difference" from sentences that other district

courts have allegedly imposed. 

Under the Strickland standard, Brown bears the burden

of proving that: (1) counsel's performance was deficient; and

(2) he suffered prejudice as a result. Id. The first prong

requires that "[counsel's] performance was, under all the

circumstances, unreasonable under prevailing professional norms." 

United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). 

Our scrutiny of counsel's performance is highly

deferential. We presume that counsel's actions were undertaken

in accordance with professional standards and as part of a "sound

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trial strategy." Strickland, 466 U.S. at 689 (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)). To satisfy the prejudice

prong, Brown must show "there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the

proceeding would have been different." Id. at 694. A

"reasonable probability" is one that is "sufficient to undermine

confidence in the outcome." Id. When ruling on a § 2255

petition, the court may address the prejudice prong first "and

reject an ineffectiveness claim solely on the ground that the

defendant was not prejudiced." Rolan v. Vaughn, 445 F.3d 671,

678 (3d Cir. 2006). 

We first address Brown's contention that trial counsel

was ineffective for failing to interview Gabriel Voluntad, the

individual with whom police saw Brown on the night of his arrest. 

Brown now contends he never met Voluntad until after his arrest

in February 2004. Brown states that this meeting took place in a

county jail while Brown awaited trial. According to Brown,

Voluntad purportedly would have testified that he and Brown had

never met before that time. Furthermore, Voluntad would have

testified that he and Brown were not selling drugs together on

the night in question. Brown alleges that his attorney failed to

speak with Voluntad despite his suggestion to do so in October

2004. Brown has submitted his own affidavit attesting to these

facts but has not obtained any declaration from Voluntad. 

 Under Strickland, "counsel has a duty to make

reasonable investigations or to make a reasonable decision that

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makes particular investigations unnecessary." Strickland, 466

U.S. at 691. The decision of whether to interview and call a

particular witnesses is generally a strategic choice made by

counsel and is entitled to a "heavy measure of deference." 

Strickland, 466 U.S. at 690-91. As our Court of Appeals has

stated, "trial counsel [is] not bound by an inflexible

constitutional command to interview every possible witness. 

Instead, counsel [is] simply required to exercise reasonable

professional judgment in deciding whether to interview" a

potential witness. Lewis v. Mazurkiewicz, 915 F.2d 106, 113 (3d

Cir. 1990). To rise to the level of ineffective assistance of

counsel, there must be a clear showing that the testimony would

have been material and favorable. Id.; see also United States v.

Gray, 878 F.2d 702, 711 (3d Cir. 1989). 

Brown has failed to show that the testimony of Voluntad

would have been material and favorable to his case. Voluntad was

arrested on the same evening as Brown, after he was apprehended

in a nearby bar attempting to flush narcotics down a toilet. 

Furthermore, Brown claims that he first met Voluntad in a county

prison. Any testimony by Voluntad regarding his arrest and

confinement would have raised questions regarding his

credibility. Counsel cannot be deemed ineffective for failing to

call a witness where there is good reason to question the

witness's credibility and the witness would be vulnerable to

cross-examination on damaging evidence. See, e.g., McAleese v.

Mazurkiewicz, 1 F.3d 159, 167–70 (3d Cir. 1993). 

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Brown additionally has failed to show that he was

prejudiced by counsel's failure to interview Voluntad under the

second prong of Strickland. As the Supreme Court has stated, "a

verdict or conclusion only weakly supported by the record is more

likely to have been affected by errors than one with overwhelming

record support." Strickland, 466 U.S. at 694. Here, an

experienced police officer testified that he clearly observed

Brown engaged in drug transactions with Voluntad as a partner. 

Brown fired shots and led police officers on a high-speed chase,

further suggesting that he had been engaged in illegal activity

on the night in question. When searched incident to his arrest,

Brown was found to be in possession of 58 plastic packets of

cocaine. Considering this overwhelming evidence, Brown has not

shown a reasonable possibility that any favorable testimony by

Voluntad would have affected the outcome of the trial. Id. 

Brown also asserts that counsel at trial erred by

entering into various stipulations, namely: (1) a stipulation

that the white powdery substance seized from him and introduced

as a government exhibit was cocaine; (2) a stipulation that the

firearm listed on the indictment was a .40 caliber Glock semiautomatic handgun loaded with eight rounds of ammunition; and (3)

a stipulation that Brown previously had been convicted of a

felony. 

Stipulations are a matter of trial strategy and as a

result are entitled to deference. When used correctly,

stipulations allow counsel "to avoid senselessly lengthening a

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trial or drawing attention to issues harmful to a party." United

States v. Shabazz, No. 06–710–01, 2011 WL 2453496, at *4 (E.D.

Pa. June 20, 2011). All three of these stipulations involved

issues harmful to Brown. Brown has presented no evidence that

any of the facts to which counsel stipulated are not true or that

litigation of these issues would have been productive. 

Accordingly, counsel was not ineffective for using stipulations

as part of his trial strategy.

In connection with his first sentencing, Brown further

maintains that counsel was ineffective for failing to object to

the court's calculation of his criminal history. Brown claims

that if counsel had done so, he would have been assigned to a

criminal history category of V instead of a criminal history

category of VI. The lower criminal history category would have

resulted in a lesser sentence under the Guidelines. 

Brown's initial sentencing was vacated by our Court of

Appeals. See Brown, 241 F. App'x 890. At resentencing, this

court found Brown to be a career offender. As a career offender,

Brown's criminal history category was VI regardless of his point

calculation. Even assuming that the initial point calculation

was somehow incorrect, Brown cannot show that he was prejudiced

under Strickland. Accordingly, he cannot succeed on this ground. 

With regard to his second appeal, Brown claims that

counsel was ineffective for failing to file a supplemental brief

advancing the argument that the career offender provision of the

Guidelines is "extreme deterrence." This argument is baseless. 

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The court correctly determined Brown to be a career offender

under the Guidelines and Brown does not challenge that finding. 

See U.S.S.G. § 4B1.1. It is evident from the re-sentencing

transcript that the court was aware that it had discretion to

depart downward but declined to do so after careful consideration

of the factors listed in 18 U.S.C. § 3553(a). 

Our Court of Appeals lacks jurisdiction to review

discretionary decisions by district courts not to depart

downward, and therefore an appeal on this basis would have been

futile. See, e.g., United States v. Batista, 483 F.3d 193, 199

(3d Cir. 2007). An attorney is not ineffective for failing to

raise every issue suggested by a defendant. Jones v. Barnes, 463

U.S. 745, 751 (1983). Instead, appellate counsel is entitled to

"winnow[] out weaker arguments on appeal and focus[] on one

central issue if possible, or at most on a few key issues." Id.

at 751-52. An attorney certainly cannot be found incompetent for

refusing to make a meritless argument. See, e.g., Werts v.

Vaughn, 228 F.3d 178, 203 (3d Cir. 2000). Accordingly, this is

not a ground for relief. 

Brown also asserts that counsel was ineffective on his

second appeal for failing to argue that the district court did

not "consider factors to justify his sentence" and that his

sentence was an "unjustified difference" from other unspecific

courts that have imposed minimum Guidelines sentences. Brown's

contentions have no support in the record. As mentioned

previously, this court carefully considered all of the § 3553(a)

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factors when imposing the sentence. The court found that Brown's

offenses, including his attempts to shoot police and his

involvement in a high-speed chase, were "very serious indeed." 

We noted that the need for deterrence was high because Brown had

endangered the lives of police officers and citizens of

Philadelphia. We also found that Brown showed no remorse and had

not been deterred by punishment for his previous offenses. When

considering the need to promote respect for the law, the court

concluded that Brown's criminal history was "reprehensible" and

that he had shown "no respect for the law over [his] lifetime." 

The court also specifically addressed the need to protect society

from Brown and stated that "[p]eople have the right in a

civilized society to be protected from violent criminals and they

have the right to be protected from the likes of you." 

Furthermore, Brown's counsel did contend on his second

appeal that his sentence was greater than necessary to satisfy

the goals of § 3553(a). This argument was rejected by the Court

of Appeals. See Brown, 385 F. App'x at 148. Based on this

record, Brown has not shown that counsel performed unreasonably

or that he was prejudiced by failure to raise this specific

argument. 

The remainder of Brown's claims are without merit.

Because Brown's contentions even if true would not entitle him to

relief, no hearing is necessary. See, e.g., United States v.

McCoy, 410 F.3d 124, 134 (3d Cir. 2005). His petition under

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§ 2255 will be denied. A certificate of appealability will not

issue.

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