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Browder v. United States

United States District Court, W.D. New York

January 20, 2017

BRIAN S. BROWDER, Petitioner,



         Pending before this Court is Brian Browder's pro se petition seeking relief pursuant to 28 U.S.C. § 2255.


         On October 20, 2010, Browder pleaded guilty to possession of child pornography in this Court before Hon. Richard J. Arcara. Docket Item 16.[1] On May 10, 2011, Judge Arcara sentenced Browder to 78 months in prison and 10 years of supervised release with special conditions. See Minute Entry dated May 10, 2011. The judgment was filed on May 31, 2011. Docket Item 43.

         Browder appealed from the judgment, Docket Item 44, arguing that “(1) the waiver of his right to appeal his sentence, as laid out in writing in the plea agreement, was misleading and is therefore not enforceable; and (2) the sentence was substantively unreasonable because it (a) was based upon sentencing guidelines of ‘uncertain provenance, ' and (b) was based upon a misunderstanding of Browder's likelihood to molest children in the future.” United States v. Browder, 499 F. App'x 74, 75 (2d Cir. 2012) (Summary Order). In dismissing the appeal, the Second Circuit noted:

[E]ven if the wording in the plea agreement were insufficient to inform Browder of his rights, the District Court carefully reviewed the plea agreement with Browder, explaining what the waiver of appellate rights entailed in layman's terms. Browder indicated that he understood both the waiver and the Court's words, and reaffirmed his agreement to waive his right to appeal. The record clearly indicates that Browder's waiver was knowing and voluntary, and that it was therefore effective to waive his right to appeal his within-Guidelines sentence.
Because we determine that Browder's waiver of his right to appeal a within-Guidelines sentence is enforceable, we do not address his argument that his sentence was substantively unreasonable.

Id. at 76.

         Browder filed the instant motion before Judge Arcara on December 31, 2013. Docket Item 62 at 13.[2] A month later, he filed additional briefing in support of the motion. Docket Item 65. On March 3, 2014, the government responded. Docket Item 67. And on April 7, 2014, Browder filed a reply. Docket Item 70 at 27.

         On December 4, 2015, this matter was reassigned to me from Judge Arcara, and about three weeks later, Browder was released from prison. On January 4, 2016, Browder filed an “Emergency Application for Appointment of Counsel.” Docket Item 79. In that application, Browder stated: “Two years have passed since the initial filing [of the § 2255 motion], and I have now completed the illegal sentence and begun supervised release.” Docket Item 79. According to Browder, the conditions of supervised release “impair [his] access to the courts and so threaten [his] due process rights, and also subject [him] to ‘therapy' and polygraph exams, [his] participation in which will surely be misconstrued due to presumption of guilt and presumption of sexual proclivity and context, and then used again [him].” Id.

         Since then, Browder has appeared before this Court a number of times in connection with alleged violations of his conditions of supervised release. See W.D.N.Y. Docket No. 10-cr-263.[3]


         I. RELIEF UNDER 28 U.S.C. § 2255

         Browder seeks relief under 28 U.S.C. § 2255, which provides:

A prisoner in custody 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, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

         As noted above, Browder has completed serving his 78-month term of imprisonment. Nevertheless, he still is “in custody” for the purposes of § 2255, and his petition is not moot, because his term of supervised release subjects him to substantial restraints not shared by the public generally. See Forrestal v. United States, 187 F.Supp.2d 37, 39 (N.D.N.Y. 2002); see also Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968) (even though underlying sentence had expired, attack on criminal conviction not moot due to “collateral consequences” of conviction). Indeed, he has been incarcerated twice in connection with violations and a pending alleged violation of the conditions of supervised release originally imposed by Judge Arcara.


         Browder asserts five grounds for relief in his petition.

         Browder describes grounds one and two as “[p]rosecutorial misconduct, with procedural error”-or “procedural and factual error”-which “denied the defendant due process, and also caused and contributed to other iniquities.” Docket Item 65 at 2, 10. Ground one focuses on an issue involving Child Protective Services, see Id. at 2-9, while ground two focuses on information received from European law enforcement agencies. See Id. at 10-15. But in both grounds, Browder claims that there was a pervasive abuse of authority that led to misrepresentations about the facts of his case. For example, he disputes (1) an ICE agent's claim about a picture of his daughter, see Id. at 2; (2) whether he accessed, or could have accessed, certain computer files, see Id. at 7; (3) whether models depicted in some of the files actually were minors, see id.; and (4) whether referrals from European law enforcement agencies actually existed or were connected to him, see Id. at 10.

         In both grounds one and two, Browder also claims that as a result of the abuses of authority and misrepresentations, he lost due process rights; he faced unreasonable difficulty in mounting a defense; he was improperly burdened with the cost of pursuing reasonable bail; and his family suffered great loss, emotional trauma, and risk. And Browder claims that those consequences, in turn, coerced him into pleading guilty. See, e.g., id. at 2, 15. Browder continues-or perhaps summarizes-this argument in ground four, claiming that his “[w]aiver of indictment and plea were unwilling.” Id. at 33 (describing his plea as “an attempt to relieve the suffering of the defendant's family, and to provide for a better defense at least for sentencing”). Id.

         In ground three, Browder claims that he received ineffective assistance of counsel, as a result of which he “made unknowing waivers of and otherwise lost due process and other substantive rights, and suffered numerous other iniquities.” Id. at 16. Among other discrete complaints, Browder claims that his counsel failed to communicate with him, failed to conduct discovery, and failed to pursue a suppression issue. Id. at 16-30. Ground three also is related to grounds one, two, and four, to the extent Browder claims that the ineffective assistance of counsel caused or contributed to his pleading guilty against his will.

         Thus, in grounds one through four, Browder includes several complaints about his attorney and government officials, but the main thrust of his claims is that he was “illegally detained while coercive pressures were applied and increased . . . until he believed he must plead guilty for the sole purpose of relieving those coercive pressures.” Id. at 41.

         Finally, in ground five, Browder claims that Judge Arcara “committed procedural error in failing to find fact prior to sentencing.” Docket Item 62 at 27.[4] In other words, Browder claims that Judge Arcara “failed to comply with rule 32(i)(3)(B) by saying objections will not affect the sentence [but nevertheless] improperly accept[ing] [objected-to] matters, even announcing their influence at sentencing.” Id.; see also Docket Item 65 at 32.


         In response to Browder's petition, the government argues that “by entering his guilty plea, Browder waived his right to appeal and/or collaterally attack any non-jurisdictional claims regarding the conduct of the Government's attorney (Ground One and Two) [i.e., relying on false or misrepresented evidence in detention hearing proffers], and his alleged unwillingness to waive indictment and enter a plea (Ground Four).” Docket Item 67 at 12-13.

         Browder misconstrues the government's argument by assuming that it relies on the section of his plea agreement in which he waived his right to appeal his sentence. See, e.g., Docket Item 70 at 7 (“The government claims that Grounds are waived by an appellate waiver in the plea agreement. . . . The appellate waiver applies only to arguments of ‘components of the sentence.' Misconduct and due process are not ‘components of the sentence.' ”); see also Docket Item 65 at 30 (“It was and still is the defendant's understanding that the appellate waiver (part VI of the Agreement) affects precisely what it says it affects in plain and unmistakable English: ‘any component of a sentence imposed by the court' . . . . It is not possible within the language that for example ‘the finding of fact' or ‘the conviction' are ‘components of the sentence.' ”). Browder is correct that section VI of his plea agreement explicitly bars appealing or collaterally attacking only his “sentence.” See United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001). But that does not mean that Browder retained an unfettered right to challenge his conviction or withdraw his plea: on the contrary, a knowing and voluntary guilty plea generally waives those rights.[5]

         “A guilty plea is no mere formality, but a ‘grave and solemn act.'” United States v. Arteca, 411 F.3d 315, 319 (2d Cir. 2005) (quoting United States v. Hyde, 520 U.S. 670, 677 (1997)). “A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.” United States v. Broce, 488 U.S. 563, 569 (1989) (emphasis added). “[S]ociety has a strong interest in the finality of guilty pleas, and allowing withdrawal of pleas not only undermines confidence in the integrity of our judicial procedures, but also increases the volume of judicial work, and delays and impairs the orderly administration of justice.” United States v. Maher, 108 F.3d 1513, 1529 (2d Cir. 1997) (internal quotation marks and alteration omitted).

         Under Rule 11 of the Federal Rules of Criminal Procedure, “[a]fter the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack.” Fed. R. Crim. P. 11(e). “[T]he circumstances under which a guilty plea may be attacked on collateral review, ” however, are “strictly limited.” Bousley v. United States, 523 U.S. 614, 621 (1998). “It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.” Mabry v. Johnson, 467 U.S. 504, 508 (1984); see Lebowitz v. United States, 877 F.2d 207, 209 (2d Cir. 1989) (“The settled rule is that a defendant who knowingly and voluntarily enters a guilty plea waives all nonjurisdictional defects in the prior proceedings.”). Thus, “when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack.” Broce, 488 U.S. at 569.

         To Browder's credit, many of his arguments do relate to the central issue of whether his plea was “both counseled and voluntary.” As noted above, the overarching theme of grounds one through four of the petition is that, due to the failings of his counsel and the misconduct of the government, Browder was detained pending trial and thereby coerced to take a guilty plea. Indeed, Browder asserts that his counsel “advised that the only remedy to the coercive effects of detention was to plead guilty.” Docket item 65 at 38.[6] Nevertheless, Browder's arguments are without merit ...

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