United States District Court, D. Connecticut
RULING AND ORDER
N. Chatigny United States District Judge
Robin Bruhjell Brass, a federal inmate, brings this action
under 28 U.S.C. § 2255 seeking to vacate her conviction
and sentence. She claims that she has been deprived of her
rights to due process, effective assistance of counsel and
freedom from cruel and unusual punishment under the Fifth,
Sixth and Eighth Amendments. The Government contends that the
claims should be dismissed without a hearing because they are
without merit, were rejected on appeal, or have been waived.
I agree and therefore deny the petition.
2012, petitioner pleaded guilty to mail fraud in violation of
18 U.S.C. § 1341. See United States v. Brass,
No. 3:11-cr-224(RNC). She admitted to taking money from
victims, promising to invest it, and instead using it to pay
her personal expenses and make “lulling payments”
to other victims. The Government's case against her
included evidence that she induced vulnerable victims to
entrust her with their savings by befriending them and
convincing them she had a record of producing better results
than other investment firms. She claimed to use
sophisticated, proprietary strategies and employ traders
around the world. She told her victims her investment fund
was insured against loss. None of this was true. To keep the
scheme going, she provided victims with fabricated account
statements showing their investments had grown. When state
regulators began an investigation, she tried to stop victims
from complaining by threatening to declare bankruptcy if
anyone spoke up. After she was indicted, her appointed
counsel negotiated a plea agreement with the Government. The
agreement stipulated to a loss amount of more than $1 million
and stated that petitioner understood the Government intended
to seek enhancements at sentencing.
to and during the sentencing hearing, petitioner maintained
that she did not intend to operate a Ponzi scheme. She
claimed that she had simply made bad personnel decisions; at
one point she even suggested that her victims would be wise
to invest with her again in the future. Several victims
testified to the devastating impact of petitioner's
fraudulent conduct: she took one couple's entire life
savings and an elderly parent's trust account, and she
left another couple in a dire financial position after taking
the entirety of an insurance settlement they needed to pay
medical bills. After enhancements for abuse of trust,
vulnerable victims and obstruction, and a reduction for
acceptance of responsibility, the advisory guideline range
suggested a sentence of imprisonment of 63 to 78 months.
Assessing the factors relevant to a sentencing determination
under 18 U.S.C. § 3553(a), I thought a sentence within
that range would be insufficient to reflect the aggravated
nature of petitioner's criminal conduct, the nature and
extent of the clearly foreseeable harm she had caused the
numerous victims, or the need to protect the public against
the risk she would commit similar financial crimes in the
future. Ultimately, I sentenced her to 96 months'
appeal, petitioner argued that her sentence was procedurally
defective because she did not receive advance notice that an
upward departure was contemplated. She also argued that the
sentence was unreasonable because it punished her twice for
the same conduct. The Court of Appeals rejected these
arguments and affirmed the sentence. See United States v.
Brass, 527 Fed.Appx. 70, 71-73 (2d Cir. 2013).
obtain relief under § 2255, a petitioner must show that
her “sentence was imposed in violation of the
Constitution or laws of the United States.” 28 U.S.C.
§ 2255. A claim is cognizable under § 2255 if it
involves a “fundamental defect which inherently results
in a complete miscarriage of justice.” Davis v.
Hill, 417 U.S. 333, 346 (1974) (quoting Hill v.
United States, 368 U.S. 424, 428 (1962)).
hearing is not required when allegations are
“insufficient in law, undisputed, immaterial, vague,
conclusory, palpably false or patently frivolous.”
United States v. Seiser, 112 F.3d 507 (2d Cir. 1996)
(citing United States v. Malcolm, 432 F.2d 809, 812
(2d Cir. 1970)). To avoid summary dismissal, a motion under
§ 2255 “must contain assertions of fact that a
petitioner is in a position to establish by competent
evidence.” United States v. Aiello, 814 F.2d
109, 113-14 (2d Cir. 1987).
Ineffective Assistance of Counsel
principal ground for relief, petitioner claims that, for
various reasons, she received ineffective assistance of
counsel in violation of the Sixth Amendment.
obtain relief on an ineffective assistance of counsel claim,
petitioner must demonstrate that (1) her counsel's
performance fell below an objective standard of
reasonableness and (2) she suffered prejudice as a result of
her counsel's deficient performance. Strickland v.
Washington, 466 U.S. 668, 694 (1984). To show prejudice,
she “must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.”
first claims that her counsel failed to properly investigate
and introduce evidence of her legitimate trading activity.
Had evidence of this type been provided, she argues, the
Court would not have formed the impression that she was a
predator who stole money from people close to her. Instead,
the Court would have seen her as a legitimate investor who
made a series of mistakes under unfortunate circumstances.
This claim is unavailing. Even assuming petitioner's
counsel was constitutionally ineffective because he did not
investigate or ...