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United States v. Brooks

United States District Court, D. Arizona

October 25, 2018

United States of America, Plaintiff/Respondent,
v.
Rafiq A. Brooks, Defendant/Movant.

          REPORT AND RECOMMENDATION

          Eileen S. Willett United States Magistrate Judge

         TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE:

         Pending before the Court is Rafiq A. Brooks' (“Movant”) “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (the “Motion to Vacate”) (Doc. 1).[1] For the reasons explained herein, the undersigned recommends that the Court deny and dismiss the Motion to Vacate with prejudice without holding an evidentiary hearing.[2]

         I. BACKGROUND

         In December 2012, a jury convicted Movant of (i) Conspiracy to Possess with Intent to Distribute Marijuana (Count 1); (ii) Possession with Intent to Distribute Marijuana on or about November 17, 2011 (Count 3); and Possession with Intent to Distribute Marijuana on or about November 9, 2011 (Count 4). (CR Docs. 139, 453). The Court sentenced Movant to a prison term of 110 months on Count 1, sixty months on Count 3, and sixty months on Count 4. (Doc. 453). All sentences run concurrently. (Id.).

         Movant appealed his convictions to the Ninth Circuit Court of Appeals. In a December 22, 2014 Memorandum, the Ninth Circuit affirmed Movant's convictions on Counts 1 and 3. (CR Doc. 527). However, the Ninth Circuit reversed Movant's conviction on Count 4 and remanded the matter to the District Court for a determination of whether resentencing is appropriate. (Doc. 527-1 at 22). At a January 15, 2015 status conference, the Government made an oral motion to dismiss Count 4 with prejudice. (CR Doc. 532). The Court granted the motion and found that resentencing is not necessary. (Id.).

         On February 18, 2015, Movant, through counsel, filed a “Motion for Sentence Reduction and Resentencing” (Doc. 533) in light of recent changes to the Sentencing Guidelines applicable to drug cases and the Court's dismissal of Count 4. The Court denied the Motion. (Doc. 554). The Court subsequently granted the parties' Joint Stipulation for Reduction of Sentence. (Docs. 547, 555). Pursuant to the Stipulation, the Court reduced Movant's sentence on Count 1 from 110 months to 92 months. (Doc. 555). On October 28, 2016, Movant timely filed the Motion to Vacate (Doc. 1).

         II. LEGAL STANDARDS

         A. Legal Standards Applicable to IAC Claims

         Movant's three grounds for relief present ineffective assistance of counsel claims. “Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance of counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial.” Massaro v. United States, 538 U.S. 500, 505 (2003). Under the first prong, a defendant must show that a counsel's representation falls “below an objective standard of reasonableness” as measured by “prevailing professional norms.” Strickland, 466 U.S. at 687-88. There is a “strong presumption that counsel's performance falls within the wide range of professional assistance.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). “A reasonable tactical choice based on adequate inquiry is immune from attack under Strickland.Gerlaugh v. Stewart, 129 F.3d 1027, 1033 (9th Cir. 1997).

         With respect to the second prong, “Strickland asks whether it is ‘reasonably likely' the result would have been different.” Harrington v. Richter, 131 S.Ct. 770, 792 (2011) (quoting Strickland, 466 U.S. at 696). “This does not require a showing that counsel's actions ‘more likely than not altered the outcome,' but the difference between Strickland' s prejudice standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.'” Id. (quoting Strickland, 466 U.S. at 693, 697). “The likelihood of a different result must be substantial, not just conceivable.” Id. (citing Strickland, 466 U.S. at 693).

         III. DISCUSSION A. Ground One

         In Ground One, Movant alleges that his trial counsel was constitutionally ineffective by advising Movant “that he had an actionable defense that could be asserted at trial.” (Doc. 2 at 8). Movant contends that “[c]ompetent counsel would have told [Movant] that, given the weight of the evidence and his statements, the likelihood of succeeding at trial would be minimal. Had [trial counsel] provided this well-reasoned advice, [Movant] would have elected not to go to trial and would have instead pleaded guilty.” (Id.). Yet the Government has provided a copy of an April 18, 2012 letter in which trial counsel advised Movant that:

If our motions are denied, then at trial I'd rate your chances at quite a bit less than 50%. The [co-defendants] look pretty guilty, and you were with them, so the jury-being human- will tend to assume you are guilty by ...

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