Brown v. United States of America

Filing 8

MEMORANDUM OF OPINION. Signed by Judge Virginia Emerson Hopkins on 11/6/2014. (JLC)

FILED
2014 Nov-06 PM 04:47
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
HOLLIE BROOKS BROWN,
Petitioner,
v.
UNITED STATES OF
AMERICA,
Respondent.

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Case No.: 2:13 -CV-8052-VEH

MEMORANDUM OF OPINION
Defendant Hollie Brooks Brown (“Defendant”) has filed a pro se Motion
for Leave of Court To File 18 U.S.C. § 2255 (f)(3) or (4) Due to New Supreme
Court Ruling (the "Motion"). Cv. Doc. 1.1 The court entered an order requiring the
Government to show cause why the Motion should not be granted. Cv. Doc. 2.
After a court-granted extension of time, the Government filed its Response. Cv.
Doc. 4. In its Response, because "the body of the [Motion] sets forth claims of

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References herein to “Cv. Doc(s). __” are to the document numbers assigned by the
Clerk of the Court to the pleadings, motions, and other materials in the court file in this § 2255
“civil” case, 2:13-cv-8052-VEH , as reflected on the docket sheet in the court’s Case
Management/Electronic Case Files system (“CM/ECF”). References herein to “Cr. Doc(s) __”
are to the document numbers assigned by the Clerk of the Court to the pleadings, motions, and
other materials in the court file in the related criminal case, 2:08-cr-00086-VEH-JHE, also as
reflected on the docket sheet in the court’s Case Management/Electronic Case Files system
(“CM/ECF”).

error and requests for relief ...[,] the [G]overnment presume[d] that [Defendant]
intended the [Motion] itself to be a motion for relief filed under § 2255 and
answer[ed] it accordingly." Cv. Doc. 4, fn. 1. The court then entered an Order
Regarding Summary Disposition, giving the Defendant 20 days to support his
Motion before the court took it under advisement. Cv. Doc. 5. Defendant filed a
Reply to the Government's Response and a Response to the court's Order. Cv.
Docs. 6, 7. Accordingly, the matter has been fully briefed. and is under
submission.
Having considered the pleadings and relevant law, the court concludes that
the Motion is due to be denied as time-barred.
I.

BACKGROUND
On April 20, 2009, pursuant to a written plea agreement, Defendant entered

a counseled plea of guilty to one count of being a felon in knowing possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1), one count of possession with intent
to distribute five grams or more of a mixture and substance containing cocaine
base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and one count of
possession with intent to distribute a mixture and substance containing cocaine
hydrochloride, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). At the
sentencing hearing, the court specifically found Defendant's sentence as to the
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922(g)(1) count to be subject to the ACCA enhancement based on his having three
prior convictions for serious drug offenses (see 18 U.S.C. § 924(e)), and sentenced
Defendant to a term of 180 months as to each count separately, with each count to
be served concurrently with the other.2 On September 21, 2009, the court entered a
final judgment to that effect. Cr. Doc. 69. Defendant did not appeal his conviction
or judgment.
The pending pro se Motion was filed on November 14, 2013. It is signed
and dated November 12, 2013. Cv. Doc. 1 at 12, 13.
II.

SECTION 2255 TIME LIMITATIONS
A § 2255 motion is subject to a one-year statute of limitations that runs from

the latest of --(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f).
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The court granted the Government’s bargained-for motion to dismiss two other counts.

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Once a § 2255 motion is filed, it is subject to preliminary review, and “[i]f it
plainly appears from the motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief, the judge must dismiss
the motion and direct the clerk to notify the moving party.” Rule 4(b) of the Rules
Governing § 2255 Proceedings. Further, while district courts are not obligated to
do so, they are permitted to consider, sua sponte, the timeliness of a § 2255
motion, even after the pre-answer, initial screening stage of the proceeding,
provided the petitioner is afforded fair notice and an opportunity to respond prior
to dismissal on such ground. See Edwards v. United States, 295 Fed. App'x 320,
321 (11th Cir.2008); Turner v. United States, 2012 WL 3848653, at *18 n. 15
(N.D.Ala. Aug. 30, 2012) (Hopkins, J.) (reconsideration denied, 2012 WL
6186067 (N.D.Ala. Dec 07, 2012)); Kizziah v. United States, 2014 WL 51282,
(N.D.Ala.,2014) (Hopkins, J.); see also Day v. McDonough, 547 U.S. 198, 207–10
(2006) (holding likewise with respect to a 28 U.S.C. § 2254 habeas petition
brought by a person in custody pursuant to a state-court judgment).
To the extent that Defendant's claims are subject to the limitations period
trigger of § 2255(f)(1) based upon when his conviction became final, those claims
are time-barred on their face. Where, as here, a defendant is convicted in federal
court and he fails to pursue any direct appeal, his conviction is considered “final”
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for purposes of § 2255(f)(1) when the 10-day period to file a timely notice of
appeal lapses.3 Akins v. United States, 204 F.3d 1086, 1089 n. 1 (11th Cir.2000);
see also Rule 4(b)(1), FED. R. APP. P. (2009). This court entered its judgment
against Defendant on September 21, 2009, so his conviction became final on
October 1, 2009. The limitations period of § 2255(f) then expired one year later,
on October 1, 2010. Giving Defendant the benefit of the “prison mailbox rule,” see
Houston v. Lack, 487 U.S. 266, 275-76 (1988), his pro se § 2255 motion is
deemed filed the date that it was signed, November 12, 2013. See Washington v.
United States, 243 F.3d 1299, 1301 (11th Cir.2001). As such, Defendant's § 2255
motion comes over three years too late for purposes of the § 2255(f)(1) limitations
period. Defendant has not disputed any of this in his filings.
However, Defendant contends that his claims are subject not to subsection
(f)(1) of § 2255 but are instead subject to subsections (f)(3) and/or (4). He claims
this is so on the theory that his claims are revived by Alleyne v. United States, __
U.S. __, 133 S.Ct. 2151 (2013), which the Supreme Court handed down on June
17, 2013, and Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438,

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Effective December 1, 2009, the time period was changed to 14 days. However, even
applying the 14 day appeal period to Defendant, the Motion is untimely on its face. Moreover,
the 14 day period does not apply, as Defendant’s case was neither commenced after December 1,
2009, nor then pending. See United States v. Blaine, 409 F. App'x 253, 256 n.4 (11th Cir. 2010)
(applying the 14-day deadline to a defendant whose appeal was pending on December 1, 2009).
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reh'g denied, 134 S. Ct. 41, 186 L. Ed. 2d 955 (2013), which the Supreme Court
handed down on June 20, 2013. Defendant contends that, because his § 2255
motion was filed within a year of the date these cases were decided, his claims are
timely under § 2255(f)(3).4 See Dodd v. United States, 545 U.S. 353, 357 (2005).
III.

ANALYSIS
In effect, Defendant asks this Court to decide that Alleyne and/or Descamps

are retroactive to cases on collateral review, see Dodd v. United States, 365 F.3d
1273, 1278 (11th Cir.2004) (“As a panel of this Court noted, every circuit to
consider this issue has held that a court other than the Supreme Court can make
the retroactivity decision for purposes of § 2255(3).”), aff'd, 545 U.S. 353, 125
S.Ct. 2478, 162 L.Ed.2d 343 (2005).
In Alleyne, the Supreme Court overruled Harris v. United States, 536 U.S.
545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2000) “and held that any fact that increases
a defendant's mandatory minimum sentence is an element of the offense that must

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Defendant has pointed to no “facts” which he discovered. Thus, his argument that his
Motion is made timely by § 2255(f)(4) has been waived. An issue must be "fairly presented" in
order to trigger consideration, and a glancing reference without discussion or legal authority does
not meet that standard. Smith v. Secretary, Department of Corrections, 572 F.3d 1327, 1352
(11th Cir. 2009). Further, a new legal rule is not a factual basis to support a § 2255 claim. See
Madaio v. United States, 397 Fed. Appx. 568, 570 (11th Cir. 2010)(“Since Section 2255(f)(4) is
predicated on the date that “facts supporting the claim could have been discovered, the discovery
of a new court legal opinion, as opposed to new factual information affecting the claim, does not
[restart] the limitations period.”)
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be submitted to the jury and proved beyond a reasonable doubt.” United States v.
McKinley, 732 F.3d 1291, 1295 (11th Cir.2013), citing Alleyne, 133 S.Ct. at 2155.
In Descamps, the Supreme Court held that “sentencing courts may not apply the
modified categorical approach [to determining whether a prior offense was a
violent felony under the Armed Career Criminal Act] when the crime of which the
defendant was convicted has a single, indivisible set of elements.” Id. at ___, 133
S.Ct. at 2282.
Defendant’s attempt to fall within the safe confines of § 2255(f)(3) fail.
Both Alleyne and Descamps were direct review cases. The Supreme Court gave no
indication in Alleyne that its decision applies retroactively on collateral review,
compare Alleyne, 133 S.Ct. at 2155–2164 with Scott v. United States, 2013 WL
4077546, *1 (S . D.Ga. Aug. 12, 2013) (“Resolving Alleyne on direct, rather than
collateral, review, [the Supreme Court] never said that its new rule applies
retroactively on collateral attack.”), report and recommendation adopted, 2013 WL
5347352 (S.D.Ga. Sept. 23, 2013), and Alleyne is a mere extension of Apprendi,
compare Alleyne, 133 S.Ct. at 2155 (“Harris drew a distinction between facts that
increase the statutory maximum and facts that increase only the mandatory
minimum. We conclude that this distinction is inconsistent with our decision in
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),
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and with the original meaning of the Sixth Amendment. Any fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to the jury
and found beyond a reasonable doubt.... Mandatory minimum sentences increase
the penalty for a crime. It follows, then, that any fact that increases the mandatory
minimum is an ‘element’ that must be submitted to the jury. Accordingly, Harris is
overruled.”) with, e.g., Simpson v. United States, 721 F.3d 875, 876 (7th Cir.2013)
(“Alleyne is an extension of Apprendi [.]”) and Houston v. United States, 2014 WL
585025, *10 (M.D.Fla. Feb. 12, 2014) (“Alleyne did not address prior-conviction
sentencing enhancements. Instead, Alleyne merely extended the rationale of
Apprendi, which itself noted that the Sixth Amendment did not require ‘the fact of
a prior conviction’ to be submitted to a jury and proved beyond a reasonable
doubt.”), a case which the Eleventh Circuit has consistently determined is not
retroactively applicable to cases on collateral review, Suarez v. United States, 325
Fed.Appx. 887, 888 n. 2 (11th Cir. May 12, 2009) (“Suarez's claim would fail
under § 2255 because Booker and Apprendi are not retroactively applicable in that
context.”); see Bennett v. Warden, FCI Jessup, 508 Fed.Appx. 929, 930 (11th Cir.
Feb. 13, 2013) (“The district court denied [Bennett's § 2255] motion because
Apprendi was not retroactively applicable to cases on collateral review. We denied
Bennett a certificate of appealability, and the Supreme Court denied Bennett's
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petition for a writ of certiorari.”). Inasmuch as it is clear to the undersigned that
the Eleventh Circuit would not find Alleyne retroactively applicable to cases on
collateral review, consistent with the observations and holdings of other courts
that have considered this issue to date, see, e.g., United States v. Redd, 2013 WL
5911428, *3 (2nd Cir. Nov. 5, 2013) (“Alleyne did not announce a new rule of law
made retroactive on collateral review.”); United States v. Stewart, 2013 WL
5397401, 1 n. 1 (4th Cir. Sept. 27, 2013) (“We note that Alleyne has not been
made retroactively applicable to cases on collateral review.”); Rhodes v. United
States, 2013 WL 5797641, *2 (S.D.Ga. Oct. 28, 2013) (“Alleyne is not
retroactively applicable to cases on collateral review.”), Defendant’s invitation to
this Court to decide to the contrary is due to be rejected.
Similarly, the Supreme Court gave no indication in Descamps that its
decision applies retroactively on collateral review, compare Descamps, supra,
with Mays v. United States, 2014 WL 2214336, *6 n.4 (N.D.Ala. May 28, 2014)
(“[T]he Supreme Court has not made Descamps retroactively applicable to cases
on collateral review[.]”); Reed v. United States, 2013 WL 5567703, *3 (M.D.Fla.
Oct. 9, 2013) (“The Supreme has not declared that its decision in Alleyne or
Descamps is to be given retroactive effect.”), and since Descamps merely clarifies
“the proper analytical approach for determining whether a defendant's sentence
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should be enhanced [,]” United States v. Ramirez–Flores, 743 F.3d 816, 820 (11th
Cir.2014); see also United States v. Contreras, 739 F.3d 592, 594 n.2 (11th
Cir.2014) (finding that Descamps “primarily addresses when it is proper to use the
modified categorical approach” to sentencing under the ACCA), it did not
announce a new rule of substantive law; Harr v. United States, 2014 WL 1674085,
* 3 (C.D.Ill. Apr. 28, 2014) (“Descamps did not announce a new rule of law.”); cf.
Graham v. United States, 2013 WL 6490458, *6 n.2 (N.D.Ala. Dec. 10, 2013)
(“There is reason to doubt that Descamps recognizes any new rule or right.”).
Inasmuch as it is clear to the undersigned that the Eleventh Circuit would not find
Descamps retroactively applicable to cases on collateral review, consistent with
the observations and holdings of the majority of courts that have considered this
issue to date, see, e.g., Williams v. Ziegler, 2014 WL 201713, *2 n.3 (S.D.W.Va.
Jan. 17, 2014) (“Case law, however, indicates that Descamps is not retroactive to
cases on collateral review.”); Baldwin v. United States, 2013 WL 6183020, *2
(D.Md. Nov. 25, 2013) (“Descamps—and by extension, Royal—are not
retroactive, and do nothing to salvage Baldwin's untimely motion to vacate
pursuant to 28 U.S.C. § 2255(f)(3).”); Roscoe v. United States, 2013 WL 5636686,
*11 (N.D.Ala. Oct. 16, 2013) (“The Supreme Court has not declared its decision in
Descamps to be retroactively applicable on collateral review, nor has the court
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found any cases applying Descamps retroactively to cases on collateral review.
Therefore, the court refuses to do so here.”). Accordingly, Defendant’s untimely
Motion is not revived by Descamps.
Based upon the foregoing, and because Defendant’s motion contains no
argument that he is entitled to equitable tolling of the limitations period and “there
is nothing in the record to support its application[,]” Stevens v. United States, 2013
WL 3458152, *2 n.2 (N.D.Miss. Jul. 9, 2013) — or that he is factually innocent of
the crime for which he was convicted — the undersigned determines that the
pending § 2255 motion is due to be dismissed.
Further, pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings,
the undersigned finds that a certificate of appealability is due to be denied. 28
U.S.C. foll. § 2255, Rule 11(a) (“The district court must issue or deny a certificate
of appealability when it enters a final order adverse to the applicant.”). The habeas
corpus statute makes clear that an applicant is entitled to appeal a district court's
denial of his habeas corpus petition only where a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability
may issue only where “the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2243(c)(2). Where, as here, a habeas petition
is being denied in its entirety on procedural grounds without reaching the merits of
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an underlying constitutional claim, “a COA should issue [only] when the prisoner
shows ... that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542
(2000). Given the applicability of the one-year limitations period in this case, a
reasonable jurist could not conclude that this court is in error for dismissing
Defendant’s Motion, nor could a reasonable jurist conclude that Defendant should
be allowed to proceed further with respect to his claims. Slack, supra, 529 U.S. at
484, 120 S.Ct. at 1604 (“Where a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.”). Accordingly, Defendant is not
entitled to a certificate of appealability.
IV.

CONCLUSION
The undersigned hereby finds that the pending motion to vacate is due to be

dismissed as time-barred pursuant to 28 U.S.C. § 2255(f)(1). Petitioner is not
entitled to a certificate of appealability and, therefore, he is not entitled to appeal
in forma pauperis. A separate order consistent with the opinion will be entered.
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DONE this 6th day of November, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

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