United States District Court, W.D. New York
BRIAN S. BROWDER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
DECISION AND ORDER
LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE
before this Court is Brian Browder's pro se petition
seeking relief pursuant to 28 U.S.C. § 2255.
October 20, 2010, Browder pleaded guilty to possession of
child pornography in this Court before Hon. Richard J.
Arcara. Docket Item 16. 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.
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
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
Id. at 76.
filed the instant motion before Judge Arcara on December 31,
2013. Docket Item 62 at 13. 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
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.
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.
RELIEF UNDER 28 U.S.C. § 2255
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
28 U.S.C. § 2255(a).
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'S GROUNDS FOR RELIEF
asserts five grounds for relief in his petition.
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.
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.
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
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.
in ground five, Browder claims that Judge Arcara
“committed procedural error in failing to find fact
prior to sentencing.” Docket Item 62 at
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.
GROUNDS ONE, TWO, THREE, AND FOUR
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
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.
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).
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.
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. Nevertheless, Browder's
arguments are without merit ...