Brown v. United States

1

SHAUN BROWN Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Civil No. 2:21cv377

Criminal No. 2:17cr169

United States District Court, E.D. Virginia, Norfolk Division

May 10, 2024

OPINION AND ORDER

MARK S. DAVIS, CHIEF UNITED STATES DISTRICT JUDGE.

This matter is before the Court on a "Motion Under 28 U.S.C § 2255 to Vacate, Set Aside, or Correct Sentence," filed by Shaun Brown ("Petitioner") . ECF No. 142. For the reasons set forth below, Petitioner's § 2255 motion is DISMISSED AND DENIED.

I. FACTUAL AND PROCEDURAL HISTORY

From April 2012 through June of 2013, Petitioner fraudulently operated a Virginia nonprofit corporation that was responsible for providing meals to low-income children over the summer school recess. ECF No. 127 ¶¶ 7, 16-17. The Summer Food Service Program ("SFSP"), which Petitioner defrauded, is funded by the United States Department of Agriculture ("USDA") and is administered by the Virginia Department of Health ("VDH") and "sponsor" corporations including Petitioner's non-profit corporation. Id. ¶¶ 7-12. While participating in the SFSP during the summer of 2012, Petitioner falsified paperwork by inflating the number of meals her non-profit had provided to children, resulting in substantial overpayments of SFSP funds. Id. ¶¶ 16-18, 33-35.

Despite this conduct, which occurred primarily during 2012, by the end of the summer of 2017 Petitioner had not been indicted. It is undisputed that the federal felony charges that were ultimately pursued against Petitioner are governed by a 5-year statute of limitation. 18 U.S.C. § 3282(a). Based on the dates of Petitioner's illegal acts, which included causing fraudulent SFSP payments to be transmitted by interstate wire, the Government needed to secure an indictment by mid-October of 2017 or risk losing the ability to timely bring certain felony charges against Petitioner. ECF No. 10 ¶¶ 10-11.

No later than September of 2017, the Government was aware of the limitations clock and had informed Petitioner, through her counsel at that time, that a federal grand jury was investigating her in connection with allegations of wire fraud, mail fraud, and theft of government property. ECF No. 83. After consultation with her lawyers, on September 15, 2017, Petitioner and her lawyers signed a two-page written document titled "extension of the statute of limitations" (hereinafter, "the waiver"). Id. In essence, Petitioner agreed to a short-term (3 month) extension of the limitations period. Id. at 1. The signed waiver expressly describes why the defense temporarily waived a limitations defense:

Desiring that an indictment against Shaun Brown not be immediately returned so that she may discuss these matters with her attorneys and the United States Attorney's Office for the Eastern District of Virginia; Shaun Brown hereby agrees to extend the five year statute of limitations with regard to any indictable violation in connection with the above-referenced matters . . . should these charges be brought against Shaun Brown . . . prior to January 25, 2018 ....

ECF No. 83, at 1-2.

On December 20, 2017, well within the extended limitations period, a federal grand jury returned an indictment charging Petitioner with two counts of Wire Fraud and one count of Theft of Government Property. ECF No. 1. The following day, a new defense attorney entered an appearance on behalf of Petitioner,^[1] ECF No. 5, and Petitioner was later placed on bond, ECF No. 7. On May 10, 2018, the grand jury returned a superseding indictment adding one additional count: Count One - Conspiracy to Commit Wire Fraud and Causing False Records.^[2] ECF No. 10. The conspiracies charged in Count One were alleged to have continued through "at least in or about June 2013," as evidenced by Petitioner's May 30, 2013, appeal of a VDH decision denying her application to participate in the SFSP program during the summer of 2013.^[3] Id. ¶¶ 8, 24.

In late July of 2018, Petitioner proceeded to a trial by jury, which ended in a mistrial based on the jury's inability to reach a unanimous verdict. ECF No. 38. A second jury trial was conducted in late October of 2018, and at the conclusion of the second trial, the jury returned a unanimous finding of guilt as to all four counts.^[4] ECF No. 87. In fact, the verdict form split out the two conspiracies charged in Count One, and the jury found Petitioner guilty as to both "Conspiracy to Commit Wire Fraud" and "Conspiracy to Cause False Records." Id. Either finding was legally sufficient to support a conviction as to Count One.

In March of 2019, Petitioner was sentenced to three years' imprisonment followed by three years of supervised release. ECF No. 118. Petitioner was also ordered to pay approximately $80,000 in restitution to the "USDA/Food and Nutrition Service." ECF No. 109. Petitioner appealed to the Fourth Circuit, and in July of 2020 the Fourth Circuit affirmed this Court's judgment. United States v. Brown, 820 Fed.Appx. 191, 198 (4th Cir. 2020). Petitioner thereafter filed her § 2255 motion in this Court, with the assistance of counsel, and after motions practice, briefing improperly used "new [2012] federal funds to pay back" the old 2011 federal debt. Trial Tr. 210-11. After defrauding the SFSP in 2012 and again being required to repay federal funds that Petitioner did not have, the Government asserts that Petitioner's ongoing efforts to participate in the 2013 SFSP were a continuation of the scheme to defraud and misuse SFSP funds. extensions, and case reassignments among judges of this Court, her motion is ripe for review.

II. STANDARD OF REVIEW

A federal prisoner in custody may collaterally attack her sentence or conviction by moving the district court "to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). To obtain relief, a petitioner must prove by a preponderance of the evidence that: (1) her sentence or conviction was "imposed in violation of the Constitution or laws of the United States"; (2) the district court "was without jurisdiction to impose such sentence"; (3) the sentence exceeds "the maximum authorized by law"; or (4) the sentence or conviction is "otherwise subject to collateral attack." 28 U.S.C. § 2255(a); Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) . A § 2255 motion is, in essence, a statutory federal habeas corpus action that enables a petitioner to collaterally attack her sentence or conviction through the filing of a new proceeding, in contrast to a direct appeal. See Jones v. Zych, 812 Fed.Appx. 115, 119 (4th Cir. 2020).

The right to pursue a collateral attack does not displace a direct appeal as the ordinary method for challenging a conviction or sentencing determination, so the doctrine of procedural default generally prevents a district court from reaching the merits of § 2255 claims that were not raised on direct appeal. See United States v. McKinney, 60 F.4th 188, 193 (4th Cir. 2023) .

Accordingly, with limited exceptions, a petitioner advancing claims asserted for the first time in a § 2255 motion "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). The "higher hurdle" applies because, once a petitioner's opportunity to pursue a direct appeal has been waived or exhausted, there is "a final judgment [that] commands respect." Id. at 165-66.

For this reason, a district court is generally prevented from reaching the merits of a defaulted § 2255 claim unless a petitioner can show two things: (1) "cause" excusing the failure to directly appeal the alleged errors; and (2) "actual prejudice resulting from the errors." United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999). Alternatively, a petitioner may overcome default by demonstrating "actual innocence by clear and convincing evidence." Id. at 493.

The above procedural default rules do not apply to freestanding claims alleging ineffective assistance of counsel. Rather, ineffective assistance claims are properly asserted for the first time in a § 2255 motion. Massaro v. United States, 538 U.S. 500, 504 (2003) . To obtain relief based on an allegation of ineffective assistance, a petitioner must establish both: (1) that counsel's performance was so deficient that it "fell below an objective standard of reasonableness"; and (2) that counsel's inadequate performance prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Conclusory statements are insufficient to carry a petitioner's burden to demonstrate ineffective assistance. See United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) ("[V]ague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court." (quoting United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000))).

When evaluating counsel's performance under the first prong of Strickland, courts "must be highly deferential" Strickland, 466 U.S. at 689; see also Kimmelman v. Morrison, 477 U.S. 365, 381-82 (1986) (discussing the "highly demanding" Strickland standard). Satisfying the first prong of Strickland requires a showing that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Reviewing courts strongly presume that counsel exercised reasonable professional judgment, and only in "relatively rare situations" will a § 2255 motion establish that, "'in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.'" Tice v. Johnson, 647 F.3d 87 102 (4th Cir. 2011) (quoting Strickland, 466 U.S. at 690) . As it is too easy to challenge an act, omission, or strategy, once it has...