Henry Brown v. USA

Filing

UNPUBLISHED OPINION FILED. [15-51218 Affirmed ] Judge: WED , Judge: LHS , Judge: SAH Mandate pull date is 08/31/2017; granting motion to amend document filed by Appellant Mr. Henry R. Brown [8285163-2] [15-51218]

Case: 15-51218

Document: 00514066190

Page: 1

Date Filed: 07/10/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-51218
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
July 10, 2017
Lyle W. Cayce
Clerk

HENRY R. BROWN,
Plaintiff-Appellant
v.
UNITED STATES OF AMERICA,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:15-CV-322
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *

Henry R. Brown, federal prisoner # 07719-424, appeals the denial of his
petition for a writ of error coram nobis challenging his 1997 guilty-plea
conviction for knowingly or intentionally using a communication facility to
facilitate the commission of a felony in violation of 21 U.S.C. § 843(b). He
argues that the district court erred by denying relief on his claims that his trial

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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Document: 00514066190

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No. 15-51218
counsel, Gary Hill, rendered ineffective assistance by misadvising Brown
during plea negotiations.
Coram nobis relief will be granted to correct only fundamental errors
that result in a complete miscarriage of justice. United States v. Dyer, 136 F.3d
417, 422, 430 (5th Cir. 1998). “[A] petitioner seeking coram nobis must exercise
reasonable diligence in seeking prompt relief.” Id. at 427. Thus, he must
provide “sound reasons” for failing to seek appropriate relief earlier. Id. at 422.
We review the district court’s “factual findings for clear error, questions of law
de novo, and the district court’s ultimate decision to deny the writ for abuse of
discretion.” Santos-Sanchez v. United States, 548 F.3d 327, 330 (5th Cir. 2008),
vacated on other grounds, 559 U.S. 1046 (2010). Ineffective assistance of
counsel may provide a valid basis for a writ of error coram nobis. See United
States v. Castro, 26 F.3d 557, 559–60 (5th Cir. 1994).
Brown fails to show that he exercised reasonable diligence in raising his
claim that Hill rendered ineffective assistance by advising him that a
Section 843(b) conviction would not qualify as a felony drug offense for
purposes of 21 U.S.C. § 841. See Dyer, 136 F.3d at 427–28. As Brown notes,
we held to the contrary of Hill’s alleged advice in United States v. Mankins,
135 F.3d 946, 949–50 (5th Cir. 1998), and Brown offers no sound reasons as to
why he did not raise this argument in his 28 U.S.C. § 2255 motion, which he
filed nearly nine months after we decided Mankins. See Dyer, 136 F.3d at 422.
Although Brown contends, as the factual underpinning for his second
ineffective-assistance claim, that he told Hill he had not participated in the
recorded phone conversation that formed the basis of his conviction, his
contention is refuted by the factual basis to which he admitted as part of his
plea agreement. See United States v. Abreo, 30 F.3d 29, 32 (5th Cir. 1994)
(holding that an unambiguous plea agreement is entitled to great evidentiary

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weight). The district court did not clearly err by rejecting Brown’s self-serving
version of the facts, and it did not abuse its discretion by denying relief.
Santos-Sanchez, 548 F.3d at 330. As the record established that Brown was
not entitled to relief, the district court did not err by declining to conduct an
evidentiary hearing. See Lujan v. United States, 424 F.2d 1053, 1055 (5th Cir.
1970).
Brown’s motion to supplement his appellate brief is GRANTED, and the
judgment of the district court is AFFIRMED.

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