RBS IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

14 KEENAN BROWN, 

Petitioner, 

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Civil No. 4416 Crim~ No. 05-00440-04 

Judge Surrick 

-vsUNITED STATES OF AMERICA, 

Respondent. 

MOTION TO VAC~TE 

CONVICTION AND SENTENCE 

UNDER 28 U.S.C. SECTION 

2255 

Now comes Keenan Brown (hereinafter "Petitioner"), acting in pro 

pe~, and moves to vacate his conviction and sentence under 28 U.S.C. 

section 2255, which provides: 

"A prisoner in custod_y under sentence of a court established 

by Act of Congress claiming the right to be released upon 

the ground that the sentence was imposed in violation of 

the Constitution or laws of the United states ... may move 

the Court which imposed the sentence to vacate, set aside 

or correct the sentence." 

A brief in support of said motion is attached hereto and incorporated 

herein by reference. 

RECEIVED 

JUL 2 8 2014 

BRIEF 

Respectfully submitted, 

Keenan Brown 

Reg. No. 60002-066 

Petitioner in pro per 

USP Allenwood 

P.O. Box 3000 

White Deer, PA 17887 

On October 5, 2005, a grand jury returned an indictment charging 

Petitioner with various crimes. Superseding indictments were filed on 

January 11, 2006, January 20, 2006, February 1, 2006, and March 22, 

2006. Finally, on February 21, 2007, a fifth superseding indictment 

Case 2:05-cr-00440-RBS Document 1616 Filed 07/23/14 Page 1 of 13
was returned. 

Petitioner was charged with conspiracy to distribute cocaine 

(Count 1), distribution of cocaine (Count 9), and using a communication 

facility to further a drug transaction (Count 11). 

Petitioner went to trial and was found guilty on December 5, 2008. 

On May 7, 2009, the Court sentenced Petitioner to life on Count 1, 

ten years on Count 2, and four years on Count 11. All sentences were 

concurrent . 

Petitioner now moves for relief under 28 U.S.C. Section 2255. 

I. PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO HAVE 

EFFECTIVE ASSISTANCE OF COUNSEL FOR HIS DEFENSE. 

A. Counsel provided ineffective assistance during the plea 

bargain negotiation process. 

The United States Constitution guarantees that a defendant in a 

criminal case is entitled to have effective assistance of counsel. 

Glasser"!.._:__ United States, 315 U.S. 60 (1942); McMann ~Richardson, 

397 U.S. 759,771 n.14 (1970) (Sixth Amendment right to counsel is right 

to effective assistance of counsel). 

Plea bargaining is a critical stage of the criminal process which 

requires the effective assistance of counsel in determining how to 

plead. Gallarelli "!.._:__United States, 441 F.2d 1402,1405 (3rd Cir. 1971) 

(footnote omitted); Colson"!.._:__ Smith, 438 F.2d 1075,1078 (5th Cir.1971); 

United States ex rel. Caruso v. Zelinsky, __ ~89 _ _I_._2_<:1 __ 432_,_438j}rd_g_~~---

1982); United States"!.._:__ Day, 969 F.2d 39,43 (3rd Cir. 1992); United 

Sfafes-v. -ceonti, 326 F. Jct- rr11-,-11T6-=-r7~( 9th CTr:-20-0-31-.-----

rn Tollett v. Henderson, 411 U.S. 258,268 (1973), the Supreme Court 

2. 

Case 2:05-cr-00440-RBS Document 1616 Filed 07/23/14 Page 2 of 13
recognized that a "prospect of plea bargaining," among other things, 

is a consideration that ''might well suggest the advisability of a 

guilty plea ... " Also see Turner-:!....:__ State of Tennessee, 664 F.Supp. 1113, 

1119 (M.D. Tenn. 1987), aff'd 858 F.2d 1201, 1205 (6th Cir. 1988) 

("[v]irtually all are forced with the decision whether to plead or to 

go to trial -- probably the most important single decision in any 

criminal case."); Jones v. Barnes, 463 U.S. 745,751 (1993) (decision 

whether to plead guilty one of four "fund,amenttal decisions" facing a 

defendant in the criminal process). 

The Strickland two-part test is applicable to a case in which a 

defendant contends that his counsel was constitutionally inadequate 

11 

during the guilty plea process. Hill v. Lockhart, 474 U.S. 52,58 (1985)7 

This well-established two-prong test for evaluating ineffective 

assistance of counsel claims is deficient performance and resulting 

prejudice . See Strickland-:!....:__ Washington, 466 U.S. 668 (1984). More 

specifically, to prevail on an ineffective assistance of counsel claim, 

a deferidan t must show that counsel's performance "fell below an objective 

standard of reasonableness" and that "there is a reasonable probalility 

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

proceedings would have been different." Id. at 688,696. See also Bell 

1/ Although Hill was decided in the context of a defendant who pled 

guilty, it is equally applicable to situations in which a defendant did 

not plead guilty but alleges that he would have done so bμt for ineffective 

assistance of counsel during the plea process. See Nunes v. Mueller, 

350 F.3d 1045,1052-53 (9th Ci~. 2003). 

3. 

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Y._:_ Cone, 535 U.S. 685,695 (2002). 

The period from the arraignment extending to the beginning of trial 

is "perhaps the most critical period of the proceedings." Nunes Y._:_ 

Mueller, 350 F.3d 1045,1052 (9th Cir. 2003) (citing Powell v. Alabama, 

287 U.S. 45,57 (1932). The American Bar Association's standard in its 

Model Code of Professional Responsibility, Ethical Consideration 7-7 

(1992) States: 

A defense lawyer in a critical case has the duty to advise 

his client fully on whether a particular plea to a charge 

appears to be desirable. (Emphasis added). 

Anthony G. Amsterdam, in Trial Manual 5 for the Defense of Criminal 

Cases (1988), discusses the issue in more detail: 

The decision whether to plead guilty or contest a criminal 

charge is ordinarily the most important single decision in 

any criminal case .. This decision must ultimately be left to 

the client's wishes. Counsel cannot plead a client guilty 

or not guilty, against the client's will. [citation omitted]. 

But counsel may and must give the client the benefit of 

counsel's professionar-advice on this critiCal decision; and 

o ft en co u n s e l can pro t e c t the client from di s as t er only by 

using a considerable amount of persuasion to convince the 

client that a plea which the client instinctively disfavors 

is, in fact, in his or her best interest~ This persuasion 

is most often needed to convince the client that s/he should 

plead guilty in a case in which a not guilty plea would be 

destructive. Section 201 at 339 (the word "must" was 

emphasized by the author; otherwise, the emphasis is the 

Second Circuit's). 

Boria~- Keane, 99 F.3d 492 (2nd Cir. 1996). 

More recently, in Lafler Y._:_ Cooper, 132 S.Ct. 1376 (2011), the 

Supreme Court ruled on an ineffective claim regarding a plea. Cooper 

was charged under Michigan law with assault with intent to murder and 

three other offenses. The prosecution offered to dismiss two of the 

4. 

Case 2:05-cr-00440-RBS Document 1616 Filed 07/23/14 Page 4 of 13
charges and to recommend a 51 to 85 month sentence on the other two, 

in exchange for a guilty plea. In a communication with the court, 

Cooper admitted his guilt and expressed a willingness to accept the 

offer. But he rejected the offer, allegedly after his attorney convinced 

him that the prosecution would be unable to establish intent to murder 

because the victim had been shot below the waist. At trial, Cooper 

was convicted on all counts and received a mandatory minimum 185 to 

360 month sentence. In a subsequent hearing, the state trial court 

rejected Cooper's claim that his attorney's advice to reject the plea 

constituted ineffective assistance. The Michigan Court of Appeals 

affirmed, rejecting the ineffective-assistance claim on the grohlnd 

that Cooper knowingly and intelligently turned down the plea offer 

and chose to go to. trial. Cooper renewed his claim in federal habeas. 

Finding that the state appellate court had unreasonably applied the 

constitutional effective assistance standards laid out in Strickland 

Y....:_ Washington, and Hill"!._:... Lockhart, the District Court granted a 

conditional writ granting relief. The Sixth Circuit affirmed. Applying 

Strickland, it found that counsel had provided deficient performance 

by advising Cooper of an incorrect legal rule, and that Cooper suffered 

prejudice because he lost the opportunity to take the more favorable 

sentence offered in the plea. The Supreme Court granted certiorari and 

agreed with the Sixth Circuit. 

The present case is very similar to the Lafler case. Prior to trial 

Petitioner's counsel advised him that he did not believe that Pet.itiorter's 

prior convictions could be used to enhance his sentence under 21 USC 

5 • 

Case 2:05-cr-00440-RBS Document 1616 Filed 07/23/14 Page 5 of 13
Section 851 because they were part of the instant offense charged in 

the conspiracy as overt acts. Therefore, they were not prior convicticns. 

(Exhibit A). This information supplied by counsel interferred with the plea 

bargain negotiation process. If Petitioner had known prior to trial 

that this information was incorrect and his prior convictions could be 

used for 851 purposes, he would have accepted the government's plea 

offer instead of proceeding to trial. ~- Thus, counsel provided 

ineffective assistance of counsel during the plea bargain negotiation 

process. Counsel should have researched this issue before trial in 

order to provide effective assistance of counsel during the plea bargain 

stage. Like the defendant in the Lafler case, counsel provided deficient 

performance by advising Petitioner of an incorrect legal defense to 

his prior convictions, and like the defendant in the Lafler case, 

Petitioner suffered prejudice because he lost the opportunity to take 

the more favorable sentence offered in the plea. See also United States 

Y...:_ Gordon, 156 F.3d 376, 379 (2d Cir. 1998) (per curiam) (stating that 

defendant's Sixth Amendment right attaches at the initiation of formal 

charges and extends to "all critical stages in the proceedings including 

plea negotiations"). Petitioner would have received a much shorter 

sentence under the plea agreement than the sentence he received of life 

without parole. Such a disparity in sentencing exposure, along with 

Pe ti ti oner's affidavit warra,nts an eviden tiary hearing. See Go'rdon, 

("We agree that such a disparity provides sufficient objective· evidence 

-- when conbined with petitioner's statement -- to support a finding of 

prejudice under Strickland."); Raysor v. United States, 647 F.3d 491 

6. 

Case 2:05-cr-00440-RBS Document 1616 Filed 07/23/14 Page 6 of 13
, (2d Cir. 2011). 

Based pn the above, Petitioner's conviction should be vacated with 

the opportunity to plead anew. Alternatively, this Court should grant 

an evidentiary hearing. 

B. Petitioner's counsel was ineffective when he failed to 

give petitioner any advice or suggestion on how to deal 

with an offered plea bargain. 

Petitioner was originally offered a ten year plea bargain and he 

signed it. When he was brought to Court for a change of plea hearing 

he was advised that the original plea was not accepted by the government's 

supervisors and now a different plea was being offered. This all happened 

in a matter of minutes. During the plea colloquy Petit~oner backed out 

of the plea because he was getting confused with the entire situation. 

The Court advised Petitioner to consult with his attorney. After a 

brief meeting with his attorney Petitioner rejected the mew plea. This 

resulted in Petitioner receiving ineffective assistance of counsel. 

(See sentencing transcript at 15-18). 

In Boria v. Keane, 99 F.3d 492 (2d Cir. 1996), the Petitioner's 

counsel testified during an e~identiary hearing regarding a plea 

bargain, that he had not in any way or at any time discussed with the 

Petitioner the advisability of accepting or rejecting the offered plea. 

He testified that, after advising Petitioner that a rejection of the 

plea would be final in the sense that an expected superseding indictment 

would eliminate all possibility of a minimal sentence, he kept discussing 

with Petitioner strategies he planned to follow in defending against 

the new indictment. 

7. 

Case 2:05-cr-00440-RBS Document 1616 Filed 07/23/14 Page 7 of 13
His testimony made clear that, although he never suggested such a 

thought to Petitioner, it was his own view that his client's decision 

to reject the plea bargain was suicidal. He sought to justify his 

conduct by asserting that he was certain that the Petitioner would 

never admit his guilt or a9cept a plea. He said he had confirmed in 

this certainty by the Petitioner's repeated assertion that accepting 

a plea would embarrass him in front of his children. For example, the 

lawyer testified: "He would be very upset about the plea. He was upset 

about how he would bring up the subject in a context often about his 

children." 

Counsel admitted that he had been aware that his client -- like any 

other person -- was capable of changing his mind. Yet he did nothing 

to persuade either his client or the father by whom he had been retained 

of the absurdity of a decision to risk years of prison separation from 

his family to avoid a few hours of embarrassment "in front of his 

children." 

The same is true in this case. Once there was two, different pleas 

on the table, and the hearing was stopped, counsel did nothing to 

persuade Petitioner that he was on a suicide course by not accepting 

the plea. He spent a few minutes after the hearing was stopped to 

explain the new maximum and minimum sentences that he faced. He failed 

to give Petitioner any advice or suggestion on how to deal with the 

new proffered plea bargain. If counsel had advised Petitioner that he 

was on a suicide course by taking this case to trial, Petitioner 

would have ac~epted the government's proposed plea bargain. (Exhibit 

A) • 

8. 

Case 2:05-cr-00440-RBS Document 1616 Filed 07/23/14 Page 8 of 13
Based on the above, Petitioner's conviction should be vacated with 

the opportunity to plead anew. Alternatively, this Court should grant 

an evidetiary hearing. 

C. Counsel was ineffective at sentencing. 

Sentencing is one of the most important stages of the criminal 

process which requires the effective as$istance of counsel. United 

States Y..._:_ Mateo, 950 F.2d 44 (1st Cir. 1991). 

Section 851 (c) (1) requires a hearing when :tne defendant files a 

written response to the information in which he denies any allegation 

of the information of prior conviction, or claims that any conviction 

alleged is invalid. 

In this case, counsel provided ineffective assistance of counsel 

by failing to object to the presentence investigation report regarding 

Petitioner's prior convictions and failing to request a hearing under 

851 (c)(1). There is case law that supports counsel's position that 

Petitioner's prior convictions could not be used under 851 because they 

were charged as overt acts in support of the conspirac~ and were not 

prior convictions. See United States v. Purcell, 667 F.Supp. 2d 498, 

502 and note 5 (E.D. Penn. 2009) (Prior to sentencing, the United 

States Probation Office determined that the 1988 and 1989 convictions 

listed in defendant's 851 Information were related ... The offense 

which gave rise to the 1988 conviction -- distribution of methaphetamine 

-- formed part of the conspiracy to distribute P2P and to manufacture 

m~thamphetamine which was the basis of the 1.989 conviction); Unitetj 

States Y..._:_ Geer, 320 F.Supp. 2d 1335 (S.D. Fla 2004) (Based upon tha 

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Case 2:05-cr-00440-RBS Document 1616 Filed 07/23/14 Page 9 of 13
evidence presented at sentencing, the Court finds that the overt acts 

which Geer took in furtherance of the Blanco organization are inclusive 

of the overt acts he took in furtherance of the Barlow conspiracy. 

Therefore, they are related for 851 purposes). Thus, counsel provided 

ineffective assistance of counsel at sentencing. Moreover, Petitioner 

can establish prejudice because he would not have ~eceived a ~entence 

of life without parole if his prior convictions were considered related. 

Based on all of the above, Petitioner's sentence should be vacated 

and he should be resentenced. Alternatively, this Court should grant 

an evidentiary hearing regarding this issue. 

RELIEF 

WHEREFORE, in light of the above, Petitioner respectively requests 

the following relief: 

1) Appoint counsel to represent Petitioner and file a supplemental 

brief; 

2) Order an evidentiary hearing; 

3) Vacate Petitioner's conviction and renew pretrial bargaining; 

or 

4) Vacate Petitioner's sentence and order him resentenced; and 

5) Grant Petitioner such further relief as this Court deems fair 

and just. 

1 0 • 

Respectfully submitted, 

~ . ~Aftu?·n., Keenan Brown 

Reg. No. 60002-066 

Petitioner in pro-per 

USP Allenwood 

P.O. Box 3000 

White Deer, PA 17887 

Case 2:05-cr-00440-RBS Document 1616 Filed 07/23/14 Page 10 of 13
DECLARATION 

I declare under penalty of perjury that the above is true and correct 

to the best of my knowledge and information, pursuant to 28 U.S.C. 

Section 1746. 

Keenan Brown 

CERTIFICATE OF SERVICE 

It is hereby certified that a copy of the foregoing this 

day of ~'*' , 2014, was served upon the following: 

Michael Bresnick 

U.S. Attorney's Office 

615 Chestnut Street, Suite 1250 

Philadelphia, PA 19106-4476 

Keenan Brown 

11. 

Case 2:05-cr-00440-RBS Document 1616 Filed 07/23/14 Page 11 of 13
KEENAN 

-vsUNITED 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

BROWN, ) Civil No. 

Petitioner, ) Crim. No. 05-00440-04 

) Judge Surrick 

) 

) 

STATES OF AMERICA, ) AFFIDAVIT OF 

Respondent. ) KEENAN BROWN 

I, Keenan Brown, hereby depose and state the following: 

1) I am the Defendant- Petitioner in the above entitled case. 

2) I was represented at trial by Elliott Cohen. 

3) Prior to tri-ai-I-was told by my attorney that he did not believe - that my prior convictions could be used to enhance my sentence under 21 

USC Section 851 because they were part of the instant offense charged 

in the conspiracy as overt acts. Therefore, they were not prior 

convictions. 

4) If I had known prior to trial that this information was incorrect 

and my prior convictions could be used for 851 purposes, I would have 

accepted the government's plea offer instead of proceeding to trial. 

5) The government originally offered me a ten year plea bargain 

wh;Lch I signed. 

6) After I was brought to Court for a change of plea hearing I was 

advised by my attorney that the original plea was not accepted by the 

government's supervisors and a different plea was being offered. This 

all happened in a matter of minutes. We then went into Court for a 

change 0£ plea hearing. 

7) During the plea colloquy I backed out of the plea because 

everything was happening so fast and I was getting confused with the 

entire situation. This Court then advised me to consult with my 

attorney. 

8) After a brief meeting with my attorney I rejected the new plea _ -,-===---b e,_c,a-1.kS e=e,0-H-nsecl :-ccdi:d,_ n 0-t-l'l-i-n-g-::-: t-0: -p e-rs-tJ.-ae-ec-:m e-,--t-h-a-t-:--::±:--w as--o n-=--a~- s l:l-ici d-e-:--- ----------

course by not accepting the plea. Counsel spent a few minutes after 

the hearing was stopped to explain the new maximum and minimum 

- ---seri-tences--tha-t-I-f'aced-.-He --t'-a-i-1-eGi--tG-g-i-ve-me---a-r:i-y--a-Gi-v-i-c-e--er-sug-ges-t-ioB-----

on how to deal with the new proffered plea bargain. 

9) If my counsel had advised me that I was on a suicide course by 

Case 2:05-cr-00440-RBS Document 1616 Filed 07/23/14 Page 12 of 13
taking this case to trial, I would have accepted the government's 

proposed plea bargain. 

Sighed under the penalties of perjury this -1~11- day of -n-' ~&~ 2014. See 28 USC Section 1746. 

Keenan Brown 

2. 

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