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United States v. Brik

United States District Court, D. Minnesota

November 14, 2019

United States of America, Plaintiff,
v.
Vladimir Vladimirovic Brik (03), Defendant

          Craig R. Baune, Surya Saxena, and Michael L. Cheever, for Plaintiff United States of America

          Vladimir Vladimirovic Brik, BOP Pro Se

          ORDER

          SUSAN RICHARD NELSON UNITED STATES DISTRICT JUDGE

         Pending before the Court is a motion to vacate under 28 U.S.C. § 2255 [Doc. Nos. 624 & 637[1] filed by Defendant/Petitioner, Vladimir Vladimirovic Brik. Having reviewed all of the filings in this matter, and for the reasons set forth below, the motion is denied.

         I. BACKGROUND

         On March 17, 2015, the Government charged Brik, and others, with four counts of conspiracy related to the distribution of controlled substance analogues, the distribution of controlled substances, the introduction of misbranded drugs into interstate commerce, and participation in money laundering. (Indictment [Doc. No. 1]; Superseding Indictment [Doc. No. 154].) Analogue drugs are drugs engineered to mimic the physiological effects of substances specifically listed as controlled on the federal schedules, but which have slightly different chemical compositions than the listed substances. See McFadden v. United States, 135 S.Ct. 2298, 2302 (2015). Specifically, the Government charged Brik and others with a conspiracy involving the manufacture and distribution of Smokable Synthetic Cannabinoid (“SSCs”) marketed as “Kryponite.” (Superseding Indictment ¶¶ 2-3.) Kryptonite included the chemicals AM-2201, UR-144, and XLR-11. (Id. ¶¶ 3, 9.)

         On the first day of trial, July 12, 2016, Defendant Brik pleaded guilty to Counts 1 and 4 of the Superseding Indictment-the controlled substance analogue distribution and money laundering conspiracy charges. (See Plea Agmt. [Doc. No. 375] ¶ 1.) The Government dropped the remaining two counts against him. At the hearing on Brik's change of plea, he was represented by retained counsel, Milana Tolins. On June 27, 2017, the Court sentenced Brik to a term of 118 months. (Sentencing J. [Doc. No. 548]; Am. Sentencing J. [Doc. No. 554].)

         Brik then filed a direct appeal with the Eighth Circuit Court of Appeals, arguing that the Government breached the parties' Plea Agreement by not opposing a two-point upward adjustment under the United States Sentencing Guidelines § 2D1.1(b)(15)(C). (See Appellant's Br. [Doc. No. 629-1] at 7].) Brik was represented by attorney Douglas Altman on appeal. The Eighth Circuit dismissed his appeal in light of a waiver of appellate rights in Brik's Plea Agreement. (8th Cir. J. [Doc. No. 596].)

         In April 2019, Brik filed the instant pro se motion to vacate under 28 U.S.C. § 2255, which the Government concedes is timely. (Gov't's Opp'n [Doc. No. 629] at 1.)

         II. DISCUSSION

         A. Legal Standard

         Under 28 U.S.C. § 2255(a),

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.

         While § 2255 generally affords relief, it is only available in limited circumstances.

         The Eighth Circuit has held that:

“[r]elief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” ... [A petitioner] may not raise a constitutional issue in the first instance on collateral review “without establishing both cause for the procedural default and actual prejudice resulting from the error.”

Walking Eagle v. United States, 742 F.3d 1079, 1081-82 (8th Cir. 2014) (quoting United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)). The petitioner bears the burden of proof as to each ground for relief. Kress v. United States, 411 F.2d 16, 20 (8th Cir. 1969).

         B. Ineffective Assistance of Counsel

         Brik argues that he received ineffective assistance of counsel, in violation of the Sixth Amendment. (Pet'r's Mot. [Doc. No. 624]; Reply [Doc. No. 637] at 9-11.) Specifically, he argues that his counsel was ineffective for the following reasons: (1) detrimentally interpreting the knowledge requirement under the Analogue Act; (2) failing to oppose a two-point upward adjustment at sentencing; (3) failing to challenge the Court's ruling on Defendant's proposed jury instruction; and (4) failing to show him the entire Presentence Investigation Report (“PSR”). (Pet'r's Mot., Grounds 1-4.)

         Within the context of § 2255, to establish ineffective assistance of counsel, a movant must satisfy the “heavy burden” of the two-part test of Strickland v. Washington, 466 U.S. 668 (1984). Apfel, 97 F.3d at 1076. Under Strickland, “a convicted defendant must prove both that his counsel's representation was deficient and that the deficient performance prejudiced the defendant's case.” Cheek v. United States, 858 F.2d 1330, 1336 (8th Cir. 1988). This deficient performance must be “so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. A defendant must show that counsel's errors were not the result of “reasonable professional judgment.” Id. at 690. Meeting the first prong of Strickland requires proof that counsel's performance “fell below an objective standard of reasonableness.” Id. at 688. The second element requires showing that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In a case involving a plea agreement, this requires a showing that “there is a reasonable probability that, but for counsel's errors, [he] would not have pleaded guilty and would have insisted on going to trial.” York v. Lockhart, 856 F.2d 61, 63 (8th Cir. 1988) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Moreover, a court's review of counsel's performance is highly deferential, and there is a strong presumption of adequate assistance. Strickland, 466 U.S. at 690.

         Thus, Brik's heavy burden here is to show that his representation was deficient and that the deficient performance prejudiced his case. Cheek, 858 F.2d at 1336. Because the sum of the evidence presented here does not overcome a strong presumption of adequate assistance or demonstrate any prejudice, Strickland, 466 U.S. at 669, Brik's claims for relief fail, as discussed below.

         As an initial matter, applicable to all of Brik's grounds for relief, the Court observes that at the change of plea hearing on July 12, 2016, Brik stated under oath that he was satisfied with Ms. Tolins' legal representation:

THE COURT: Now, you've been represented throughout by Ms. Tolins. Have you had a chance to discuss these charges with her?
A: I have, Your Honor.
THE COURT: Have you told her everything you want her to know ...

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