7th Circuit remands drug conviction for deficient counsel hearing

The U.S. District Court for the Southern District of Indiana must hold a hearing on a convicted drug offender’s motion for collateral relief after the 7^th Circuit Court of Appeals determined the offender presented evidence to justify a hearing on deficient counsel performance.

In LeeAnn Brock-Miller v. United States of America, 16-3050, LeeAnn Brock-Miller was charged in one count of a 26-count indictment surrounding a conspiracy by Indiana Department of Correction inmates to use illicit cell phones to transfer heroin from Chicago to Indiana. Count Six, which mentioned Brock-Miller, alleged she was in possession of $6,000 that was to be used to obtain heroin in Chicago.

Brock-Miller – a drug addict with an extensive criminal history – later told a judge she agreed to give two other conspirators a ride to Chicago in exchange for one gram of heroin. One year after her indictment, Brock-Miller became subject to an enhanced 20-year minimum sentence based on the government’s decision to seek enhanced penalties against persons who commit drug offenses after a prior conviction for a felony drug offense became final.

The prior conviction cited in Brock-Miller’s case was for a 2008 charge of unlawful possession of syringes or needles under Indiana Code section 16-42-19-18 (2007). Her appointed counsel, however, filed an objection arguing she had not been convicted under I.C. 35-48-4-8.3, which the 7^th Circuit Court of Appeals said was frivolous because the government had not asserted that statute as the basis for the enhancement.

The Southern District Court never ruled on the objection, and Brock-Miller pleaded guilty to conspiracy to possess with intent to distribute more than 100 grams of heroin in exchange for a 10-year prison sentence and eight years of supervised release. She also agreed to forfeit her right to appeal, so she filed for collateral relief under 28 United States Code section 2255, alleging ineffective assistance stemming from the frivolous objection. She also alleged she was inappropriately advised to plead guilty under an agreement that allowed her to be sentenced as a recidivist without filing a proper objection to the enhancement.

The district court denied Brock-Miller’s motion, finding her possession of syringes conviction qualified for the enhancement. However, Chief Judge Diane Wood wrote in a Tuesday opinion that the district court incorrectly looked to the 2015, not 2007 version, of I.C. 16-42-19-18. The 2007 version only allowed convictions based on legend drugs, which does not include heroin, meaning Brock-Miller should have not been subject to the enhancement for a prior felony drug offense.

Brock-Miller then appealed, arguing her 2008 conviction does not qualify as a felony drug offense. The 7^th Circuit agreed, again pointing to the district court’s error in looking to the 2015 version of the statute, which referenced controlled substances — including heroin — and legend drugs.

The appellate panel also agreed that Brock-Miller’s counsel’s failure to file a meritorious objection to the enhancement and instead to file the frivolous objection would, if proven, constitute deficient performance. Further, counsel’s advice that Brock-Miller take the plea agreement could have been based on deficient performance as well, Wood wrote.

“Brock-Miller has presented sufficient evidence to justify a hearing on both deficient performance and prejudice under (Strickland v. Washington, 466 U.S. 668 (1984)),” Wood wrote. “We therefore reverse the judgment of the district court, and remand for a hearing on the questions of whether counsel’s performance was deficient and, if so, whether Brock-Miller was prejudiced by counsel’s errors.”