Brown v. United States

• Court: District Court, D. New Hampshire
• Decided: October 6, 2000
• Docket: CV-00-140-M
• Status: Published

Opinion

Brown v. United States CV-00-140-M 10/06/00 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Sean Brown, Petitioner

v. Civil No. 00-140-M

United States of America, Respondent

O R D E R

Petitioner seeks post-conviction relief, under 28 U.S.C.

§ 2255, on grounds that a search of his residence was not

supported by probable cause, and his counsel did not adequately

contest the warrant authorizing the search.

On March 26, 1999, petitioner pled guilty to two counts of

an indictment charging him, respectively, with possession of

crack cocaine and possession of heroin, with the intent to

distribute it. Petitioner's guilty pleas were providently

entered, he was adjudged guilty, and was subsequently sentenced.

Before petitioner pled guilty, his counsel challenged the

search of his residence by attacking the validity of the

authorizing warrant and moving to suppress the seized evidence. A hearing was held on petitioner's motion to suppress, evidence

was offered, the issues were briefed, and the motion to suppress

was denied by order dated January 29, 199[9] (document no. 46).

At petitioner's plea hearing he not only freely admitted his

guilt as to every essential element of each charge, but also

expressed complete satisfaction with his counsel:

THE COURT: Mr. Brown, are you satisfied with the representation of and the advice given to you by Mr. Lange in this case?

MR. BROWN: Very much, your Honor.

Indeed, counsel also reserved petitioner's right to appeal the

suppression ruling, notwithstanding the guilty pleas. An appeal

was taken, and, by judgment dated December 1, 1999, the court of

appeals held that "Even if we disregard the challenged statements

[by the affiant], the remainder of the affidavit sets forth ample

evidence to establish probable cause, including information from

two confidential informants and multiple controlled purchases."

United States v. Brown, No. 99-1836 (1st Cir. December 1, 1999).

Nevertheless, petitioner now makes conclusory allegations to

the effect that counsel was ineffective in challenging the

affidavit supporting the warrant application. Petitioner says

2 one of the informants referred to by the affiant later

contradicted or denied statements attributed to him and/or made

by the affiant in the supporting affidavit. But, petitioner

says, the fact of that contradiction was not presented to the

court by his counsel during the suppression hearing, despite

petitioner's insistence at the time. But petitioner does not say

what statements or facts were allegedly contradicted, or how

those contradictions might have undermined probable cause. He

merely asserts, in conclusory fashion, that one confidential

informant (of two) supposedly told his counsel before the hearing

(and has allegedly since executed an affidavit affirming) that

he/she "denied the majority of the allegations made by the

affiant in order to fabricate probable cause."

Petitioner's motion for relief must fail on the asserted

grounds - ineffective assistance of counsel - because even if the

referenced confidential informant testified at the suppression

hearing in a way that "contradicted" or "denied" a "majority of

the allegations made by the affiant," and even if those

contradicted statements made by the affiant (whatever they are)

are now disregarded, the affidavit still "sets forth ample

3 evidence to establish probable cause, including information from

two confidential informants and multiple controlled purchases."

Id. (emphasis added). See Franks v. Delaware, 438 U.S. 154

(1978) .

To prevail on an ineffective assistance of counsel claim,

petitioner would have to allege and eventually show that 1) under

all of the circumstances counsel's performance fell below an

objective standard of reasonableness, and 2) there is a

reasonable probability that, but for counsel's unprofessional

error, the result of the proceedings would have been different.

Strickland v. Washington, 466 U.S. 668 (1984). "The Strickland

test imposes 'highly deferential' judicial scrutiny of counsel's

performance and 'a strong presumption that counsel's conduct

falls within the wide range of reasonable professional

assistance.'" Lopez-Nieves v. United States, 917 F.2d 645, 648

(1st Cir. 1990) (guoting Strickland, 466 U.S. at 689).

The Strickland test also applies to challenges to guilty

pleas based on ineffective assistance of counsel. See Hill v.

Lockhart, 474 U.S. 52 (1985). Petitioner apparently challenges

his conviction based on his pleas, for he seems to be arguing

4 (and must argue under Strickland) that had counsel not

ineffectively handled the suppression matter, the evidence would

have been suppressed, and he would not have pled guilty.

His difficulties are insurmountable, however. First,

counsel not only litigated the issue competently, but even

preserved petitioner's right to seek appellate review of the

court's ruling, notwithstanding the later pleas. An appeal was

taken and the court of appeals reviewed the sufficiency of the

affidavit underlying the search warrant. Nothing petitioner has

disclosed suggests that counsel's performance fell below an

objective standard of reasonableness; certainly conclusory and

unspecific claims that a confidential informant later denied or

contradicted statements made by the affiant in some unspecified

way do not serve to rebut the strong presumption that counsel's

conduct fell within the wide range of reasonable professional

assistance.

Secondly, petitioner does not assert, nor can he plausibly

assert that he was prejudiced in some way by counsel's handling

of the suppression issue, because, even if counsel's

representation did fall below the applicable objective standard

5 for the reasons petitioner gives, that failure would not have

affected the suppression ruling. Even if one confidential

informant might have contradicted statements made by the affiant

relevant to that informant's knowledge or participation, and the

contradicted statements were ignored, probable cause to issue the

warrant was nevertheless established. The evidence seized would

not have been suppressed because, as the court of appeals

explained:

". . . the remainder of the affidavit sets forth ample evidence to establish probable cause, including information from two confidential informants and multiple controlled purchases." [emphasis supplied].

The multiple controlled drug purchases described in the affidavit

were sufficient to establish probable cause to search

petitioner's apartment for controlled drugs.

Because the petition asserts no facts that could meet the

"prejudice" aspect of the Strickland test, his ineffective

assistance claim necessarily fails, and because the files and

records of the case otherwise conclusively show that petitioner

is entitled to no relief under Section 2255, his petition is

DISMISSED.

6 SO ORDERED.

Steven J. McAuliffe United States District Judge October 6, 2000

cc: Sean Brown Paul M. Gagnon, Esg. Peter E. Papps, Esg.