United States District Court, Southern District of Georgia, Augusta Division
Forace Raheem Brown, Petitioner, Pro se, Estill, SC.
For United States Of America, Respondent: James Christian Stuchell, LEAD ATTORNEY, U.S. Attorney's Office - Savannah, Savannah, GA; Nancy Colleen Greenwood, LEAD ATTORNEY, U.S. Attorney's Office - Augusta, Augusta, GA.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE.
Petitioner, an inmate at the Federal Correctional Institution in Estill, South Carolina, has filed with this Court a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons set forth below, the Court REPORTS and RECOMMENDS that the § 2255 motion be DENIED without an evidentiary hearing, that this civil action be CLOSED, and that a final judgment be ENTERED in favor of Respondent.
On May 4, 2011, the grand jury in the Southern District of Georgia charged Petitioner with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). United States v. Brown, CR 111-182, doc. no. 1 (S.D. Ga. May 4, 2011) (" CR 111-182"). Petitioner retained attorney Peter Johnson to represent him. (Id., doc. nos. 5, 7.)
B. Change of Plea
On September 12, 2011, the day of his scheduled trial, Petitioner instead pled guilty to the single-count indictment without a plea agreement before United States District Judge J. Randal Hall. (Id., doc. nos. 21-23.) During the change of plea hearing, Judge Hall established Petitioner's competence to enter a guilty plea if he so desired. (Id., doc. no. 42 (" Rule 11 Tr."), pp. 5-8.) Petitioner testified under oath that he had previously received treatment and medication for depression, but was not on any medication during that hearing and clearly understood where and why he was in the hearing. ( Id. at 7-8.) Petitioner also testified under oath that he was satisfied with the assistance he had received from Mr. Johnson. ( Id. at 8-9.)
Judge Hall reviewed the charge in Petitioner's case and the possible statutory penalties for the charge to which Petitioner was pleading guilty. ( Id. at 11.) Judge Hall informed Petitioner that a conviction on a § 922(g)(1) charge carried a statutory maximum sentence of ten years. ( Id.) When asked, Petitioner confirmed that he understood the possible penalties. ( Id. at 11-12.) Judge Hall also explained the rights Petitioner would be waiving by pleading guilty, and Petitioner affirmed that he clearly understood those rights. ( Id. at 8-11.) Among the rights explained, Judge Hall reviewed the right to trial by jury, the presumption of innocence, the government's burden to prove guilt beyond a reasonable doubt, the right to present and cross-examine witnesses, and the right to remain silent. ( Id.) Petitioner also affirmed that no one had forced or pressured him to plead guilty, or made him any promises to induce him to plead guilty. ( Id. at 11, 19.) Nor had anyone promised, predicted, or prophesied that Petitioner would receive a specific sentence. ( Id. at 15.)
Next, Judge Hall heard a factual basis for Petitioner's guilty plea from Special Agent Ron Rhodes with the Bureau of Alcohol, Tobacco, Firearms, and Explosives. ( Id. at 16-18.) SA Rhodes testified as to the circumstances of Richmond County Narcotics Investigator James Swint's stop of Petitioner on April 18, 2011, as told to him by Inv. Swint. ( Id.) SA Rhodes testified that Inv. Swint made contact with Petitioner and another individual, who was a known narcotics distributor, after he observed a hand-to-hand transaction. ( Id.) Inv. Swint asked both individuals to place their hands on the vehicle and began a pat-down of Petitioner. ( Id.) Petitioner and Inv. Swint got into a struggle after Petitioner took his hands off the car, removed a firearm from his waistband, and began to turn around. ( Id.) Petitioner punched Inv. Swint and fled. ( Id.) He was located later that day and taken into custody. ( Id.) The firearm was recovered from the scene, and SA Rhodes was later able to determine that Petitioner had two prior felony convictions in the Superior Court of Richmond County. ( Id.)
Petitioner affirmed that the testimony of SA Rhodes was factually correct as to his possession of the firearm identified in the indictment and his two felony convictions at the time he was in possession of the firearm. ( Id. at 18-19.) Petitioner and Mr. Johnson clarified that Petitioner's only dispute with the statement of facts was that the other individual gave Petitioner the firearm when Inv. Swint approached and that he was removing the firearm from his waistband to conceal it, not to assault Inv. Swint. ( Id. at 18-20.) However, Petitioner did not dispute either that he (1) possessed the firearm or (2) had been convicted of two prior felonies when he possessed the firearm. ( Id. at 18-19.) Petitioner also told Judge Hall he was guilty of, and wanted to plead to, the single-count indictment. ( Id. at 20.) Mr. Johnson also stated his belief that Petitioner's plea of guilty was voluntary. ( Id. at 19.)
Judge Hall then summarized the proceedings as follows:
[Petitioner] is competent. He fully understands the charge against him. There is an independent factual basis for his plea of guilty on this charge that contains each of the essential elements of the offense. He knows the maximum punishment that could be imposed on the charge, and he knows his jury rights which he has knowingly and voluntarily waived.
I further find that [Petitioner's] decision to plea guilty this morning was voluntary, knowing, and not the result of any force pressure, threats or promises. Therefore, the plea is accepted and [Petitioner] is adjudged guilty of Count One of the indictment based upon his plea of guilty.
( Id. at 21.)
The United States Probation Office then prepared a Presentence Investigation Report (" PSI") which set Petitioner's Total Offense Level at 28, Criminal History Category at III, and an advisory Sentencing Guidelines range for imprisonment at 97-120 months. (PSI ¶ ¶ 24, 32, 50.) Petitioner stated that he was recently treated at Serenity Behavioral Health in Augusta, Georgia, for approximately one year, but personnel at Serenity were unable to locate a record regarding Petitioner's treatment. ( Id. ¶ ¶ 41.) Petitioner filed an objection to the PSI, which was resolved prior to sentencing. (See PSI Addendum; CR 111-182, doc. no.43, (" Sent. Tr."), p. 4.) At sentencing, Judge Hall adopted the factual statements in the PSI and the recommended Guidelines range of 97-120 months. (Sent. Tr., p. 4.)
Also at sentencing, Judge Hall heard from defense counsel, who presented mitigating evidence. ( Id. at 5-9.) Mr. Johnson provided a summary of Petitioner's version of events, stating that Petitioner was not trying to pull the firearm on the officer to commit an assault. ( Id. at 5-6.) Petitioner's sister and aunt both testified that Petitioner was on medication and receiving treatment for depression and anxiety. ( Id. at 7-8.) Mr. Johnson stated:
As the family has referenced [sic]. There are mental health issues here. [Petitioner] has been struggling apparently all his life with depression, anxiety. He is currently taking medication for the depression and for bipolar disorder. I think that might be a contributing factor to what occurred here back on April of last year because at that time [Petitioner] was not compliant with his medication. ...