                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 08a0084n.06
                             Filed: January 29, 2008

                                                  06-1388

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


BRIAN BROWN,                                           )
                                                       )
        Petitioner-Appellant,                          )
                                                       )
v.                                                     )    ON APPEAL FROM THE UNITED
                                                       )    STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA,                              )    EASTERN DISTRICT OF MICHIGAN
                                                       )
        Respondent-Appellee.                           )




        Before: DAUGHTREY and COLE, Circuit Judges; COLLIER,* District Judge.


        PER CURIAM. Petitioner Brian Brown is a federal prison inmate who was convicted

for conspiring to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C.

§§ 846 and 841(a)(1). Following his conviction and incarceration, he filed a motion to

vacate his sentence, pursuant to 28 U.S.C. § 2255, and now appeals the district court’s

failure to hold an evidentiary hearing and the court’s denial of post-conviction relief.

Because we conclude that the district court properly denied the petitioner’s ineffective-

assistance-of-counsel claim and did not abuse its discretion in entering judgment without

the benefit of a hearing, we affirm.




        *
          The Hon. Curtis L. Collier, Chief United States District Judge for the Eastern District of Tennessee,
sitting by designation.
06-1388
Brown v. United States

       “A prisoner seeking relief under 28 U.S.C. § 2255 must allege either (1) an error of

constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error

of fact or law that was so fundamental as to render the entire proceeding invalid.” Short

v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quotation marks and citation omitted).

“We review a district court's denial of a federal prisoner’s § 2255 motion to vacate, set

aside, or correct a sentence de novo, but will overturn its factual findings only if they are

clearly erroneous.       A claim of ineffective assistance of counsel [under the Sixth

Amendment] presents a mixed question of law and fact that we similarly review de novo.”

Id. at 691 (citations omitted). To prevail on such a claim, Brown must prove both (1) that

his counsel’s assistance was deficient because it “fell below an objective standard of

reasonableness” and (2) that this deficient performance prejudiced the petitioner so

seriously that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland v. Washington,

466 U.S. 668, 688, 694 (1984). Moreover, Brown must do so by a preponderance of the

evidence. See Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).


       As to the first prong, Strickland mandates a “strong presumption” that counsel has

“rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Strickland, 466 U.S. at 689-90. Hence, a petitioner

“must overcome the presumption that, under the circumstances, the challenged action

might be considered sound trial strategy.” Id. at 689 (quotation marks and citation omitted).



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Brown v. United States

Analyzing the first prong of a Strickland claim further requires us to “evaluate the conduct

from counsel’s perspective at the time.” Id.


       Brown asserts that his trial counsel’s assistance was deficient because the attorney

failed to defend affirmatively on the ground that the petitioner had withdrawn from the

conspiracy more than five years prior to the date of his initial indictment, January 20, 1999.

He contends that the activity with which he was charged therefore fell outside the relevant

five-year statute of limitations, 18 U.S.C. § 3282(a).


       This claim must be reviewed under well-settled law that once a conspiracy is

established, if it “contemplates a continuity of purpose and continued performance of acts,

it is presumed to exist until there has been an affirmative showing that it has terminated;

and its members continue to be conspirators until there has been an affirmative showing

that they have withdrawn.” United States v. Gardiner, 463 F.3d 445, 463 (6th Cir. 2006)

(quotation marks and citation omitted). "Mere cessation of activity is not enough" to

establish withdrawal. United States v. True, 250 F.3d 410, 425 (6th Cir. 2001) (citing

United States v. Lash, 937 F.2d 1077, 1083 (6th Cir. 1991)). Instead, “[t]he defendant

must present evidence of some affirmative act of withdrawal on his part, typically either a

full confession to the authorities or communication to his co-conspirators that he has

abandoned the enterprise and its goals.” United States v. Chambers, 944 F.2d 1253, 1265

(6th Cir. 1991) (citation omitted).




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06-1388
Brown v. United States

        Because withdrawal from a conspiracy is an affirmative defense, the defendant

bears the burden of proving that it occurred. See Lash, 937 F.2d at 1083. In this case,

Brown puts forward three bases as proof of his withdrawal. First, he notes that Ronald

Simpson testified that his drug transactions with the petitioner occurred in the “‘92 and ‘93

periods” and that “Peanut [Brown] had disappeared after ‘93-94.” Brown argues, based

on this testimony, that Simpson had notice of Brown’s withdrawal from the conspiracy.

Second, Brown points out that no witness testified to any overt act involving him in the

conspiracy on a specific date past 1992. Third, Brown claims that because he gave a

statement to the FBI at the time of his 1992 arrest, in which he named Shawn “Click”

McKinney as a source of funds for his drug purchases, he satisfied the “clean breast”

doctrine. Brown, however, does not claim that the currently charged conspiracy ended at

the time of his 1992 arrest1 for a prior drug-trafficking conspiracy, contending instead that

the arrest marked his withdrawal from the second conspiracy.


        We conclude that none of this evidence is legally sufficient to prove conclusively that

Brown had withdrawn from the conspiracy. First, regardless of whether or when Brown left

town, there is no evidence that he informed his co-conspirators that he was quitting the

ongoing drug-trafficking activities of the group, which is what is required to establish

effective withdrawal from a conspiracy. See Chambers, 944 F.2d at 1265. Rather, his


        1
          The 1992 arrest led to charges that were dism issed on the basis of speedy trial violations; although
the first AUSA tried to include the prior conspiracy in the conspiracy charged in this case, the current
governm ent attorney m aintained at trial and m aintains at this stage of appeal that the conspiracy at issue in
the current case is distinct from the one related to the 1992 arrest. See JA 742-43; Appellee’s Br. at 17 n.14 .

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06-1388
Brown v. United States

“disappearance” represents the cessation of activity that we rejected as the basis of

withdrawal in True.      See 250 F.3d at 425.       Even if the testimony of Brown’s

“disappear[ance] after ‘93-‘94” could be considered as communication of withdrawal, the

timing of this disappearance does not prove that Brown had withdrawn by January 20,

1994, which is what a valid statute-of-limitations defense would require.


       Second, we have previously held that an absence of overt acts in a continuing

conspiracy, without more, will not support a claim of withdrawal. See Chambers, 944 F.2d

at 1265. That the record lacks evidence of the specific dates of Brown’s overt acts after

1992 does not prove that Brown had affirmatively withdrawn from the conspiracy.


       Third, Brown failed to make a full confession to the FBI during his 1992 interview,

which is what is required to establish withdrawal under Chambers. See id. In that case,

we held that an admission of criminal activity that fails to provide complete information

known to the defendant concerning the conspiracy will not qualify as withdrawal but,

instead, “evidences a lack of cooperation with the authorities.” Id. Just such a lack of

cooperation is apparent on the record in this case. At the time of Brown’s arrest, the FBI

made clear that full cooperation would require total disclosure, including naming other

narcotic traffickers. In response, Brown named McKinney, an unindicted co-conspirator

in this case, during the interview. However, the interview transcript demonstrates that

Brown offered an incomplete confession, omitting relationships that he had previously

established with co-conspirators in this case. Indeed, the record in this case demonstrates


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06-1388
Brown v. United States

clearly that Brown was involved in cocaine transactions with various individuals whom he

failed to name during his 1992 FBI interview, among them Donnell Simpson and Ronald

Simpson.


       Finally, because withdrawal is an affirmative defense, petitioner bore the burden of

proving it at trial but, as indicated above, simply did not carry that burden. There was no

evidence that the defendant had affirmatively notified his co-conspirators that he intended

to withdraw from the conspiracy prior to January 1994. Moreover, his attorney made a

strategic decision to suppress all evidence emanating from Brown’s arrest in 1992,

including his admissions during the FBI interview, which the government sought to

introduce under Federal Rule of Evidence 404(b) as proof of “other crimes.” Hence, the

district court correctly concluded that his trial counsel’s failure to press the “clean breast”

defense was a strategic decision that did not constitute ineffective representation. Under

the circumstances, we conclude that the attorney’s choice not to pursue this theory was

precisely the kind of sound trial strategy that under Strickland constitutes acceptable

representation. See 466 U.S. at 689-90.


       We do recognize, as the petitioner contends, that the district court did not address

Brown’s additional claim that his trial counsel’s performance was objectively unreasonable

because the attorney incorrectly understood the law of conspiracy. Counsel demonstrated

his misapprehension of the law in a letter to petitioner, which reads in relevant part:




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06-1388
Brown v. United States

       In narcotics conspiracy cases there is no requirement that the defendant
       commit overt acts. The offense is complete upon entering into the
       conspiracy. As such, a person cannot avoid criminal liability by quitting the
       conspiracy after entry. If the person does quit, the statute of limitations does
       not begin to run until the conspiracy ends. In your case, the alleged
       conspiracy ended at the earliest on the arrest of Ronald and Donnell
       Simpson. As a matter of law, the alleged conspiracy did not end when you
       left town in 1992. Only your alleged involvement ended. Thus, the statute
       has not run because Ronald and Donnell were arrested in 1994 and 1995.
       There are non-narcotics cases in other circuits which might take a different
       view, but those cases are not accepted in the Sixth Circuit and many other
       circuits.


The highlighted information contained in this letter demonstrates both trial counsel’s

misapprehension of the law of withdrawal from a conspiracy and, facially at least, deficient

performance under Strickland in his advice to his client.


       Despite this obvious deficiency, Brown cannot prevail on his section 2255 claim

because he has not demonstrated that prejudice resulted from his attorney’s error. At the

trial stage, even if the trial counsel had correctly understood the law of withdrawal and

presented the evidence the petitioner now asserts, the jury could not have made a finding

of withdrawal because there was insufficient proof as a matter of law to establish the

affirmative defense. There were likewise insufficient facts to warrant pre-trial dismissal of

the indictment on the basis of a motion to dismiss under Federal Rule of Criminal

Procedure Rule 12(b). We therefore conclude the petitioner has not shown “a reasonable

probability that, but for counsel’s [failure to raise this affirmative defense], the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. It follows that Brown

cannot prevail on his Strickland claim.

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06-1388
Brown v. United States

       Nor do we believe that additional testimony would have aided the petitioner. A

district court’s denial of an evidentiary hearing regarding a prisoner’s section 2255 motion

is reviewed for abuse of discretion standard. See Pough, 442 F.3d at 964 (citing Williams

v. Bagley, 380 F.3d 932, 977 (6th Cir. 2004)). “In reviewing a § 2255 motion in which a

factual dispute arises, ‘the habeas court must hold an evidentiary hearing to determine the

truth of the petitioner’s claims. . . . [and t]he burden on the petitioner in a habeas case for

establishing an entitlement to an evidentiary hearing is relatively light.’” Valentine v. United

States, 488 F.3d 325, 333 (6th Cir. 2007) (citing Turner v. United States, 183 F.3d 474,

477 (6th Cir. 1999)). “Nevertheless, [a]n evidentiary hearing is required unless the record

conclusively shows that the petitioner is entitled to no relief,” as when “the petitioner’s

allegations cannot be accepted as true because they are contradicted by the record,

inherently incredible, or conclusions rather than statements of fact.” Valentine, 488 F.3d

at 333 (citing Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)) (internal

quotation marks omitted, alteration in the original). When “the judge considering the

§ 2255 motion also conducted the trial, the judge may rely on his or her recollections of the

trial.” Arredondo, 178 F.3d at 782.


       In this case, the district judge had not ruled on the petitioner’s motion for an

evidentiary hearing on his section 2255 motion when the petitioner filed a superceding

motion for judgment on the pleadings. The district court may well have concluded that, in

so doing, the petitioner had abandoned his request for a hearing. In the absence of a

contemporaneous objection, the district court’s failure to rule on the initial motion cannot

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06-1388
Brown v. United States

be considered an abuse of discretion. See Cathey v. Johns-Manville Sales Corp., 776

F.2d 1565, 1573 (6th Cir. 1985) (recognizing that the denial of a motion may be implicit in

another ruling).


       In any event, the district court had already examined the question of ineffective

assistance of Brown’s trial counsel at some length during a hearing on the defendant’s

motion for a new trial, when new counsel raised the same statute-of-limitations issue that

is now before us on appeal. The district court’s careful recitation of the evidence in the

opinion and order denying petitioner’s section 2255 motion supports a conclusion both that

the district judge was fully cognizant of the record and that it was sufficient to resolve the

issue without the need for additional evidence. Hence, because the record itself offered

sufficient evidence to contradict the petitioner’s claims and “conclusively show[ed] that the

petitioner [was] entitled to no relief,” the district court’s failure to provide an additional

hearing did not amount to an abuse of discretion. Valentine, 488 F.3d at 333.


       For the reasons set out above, we AFFIRM the judgment of the district court.




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