Brian Keith Brim v. United States of America

Filing 12

ORDER RE CERTIFICATE OF APPEALAIBLITY AND "REQUEST TO WITHDRAW" by Judge Dean D. Pregerson. For the foregoing reasons, the Court DENIES Plaintiff a COA as to Appeal No. 14-55792, but grants it as to Appeal No. 13-56477. IT IS SO ORDERED. (car)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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BRIAN KEITH BRIM,

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Plaintiff,
v.

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UNITED STATES OF AMERICA,

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Defendant.

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___________________________

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Case No. CV 12-08107 DDP T
[TERM GAVEL ON DOCKET NO. 11]
Appeal No. 14-55792 and
Appeal No. 13-56477
ORDER RE CERTIFICATE OF
APPEALABILITY AND “REQUEST TO
WITHDRAW”
[CV 99-02201 DDP]
[SA CR 93-00098 LHM]
[Dkt. Nos. 484, 495, 496]

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In 1996, Plaintiff was convicted of conspiracy to manufacture

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phencyclidine (“PCP”), in violation of 21 U.S.C. § 846, 841(a)(1),

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possession of piperidinocyclohexanecarbonitrile (PCC) and

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piperidine with intent to manufacture PCP, in violation of 21

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U.S.C. § 841(a)(1), and attempt to manufacture PCP, in violation of

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21 U.S.C. § 841(a)(1). (Cr. Dkt. Nos. 17, 223.)

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convictions were based on possession of certain precursor chemicals

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used in the manufacture of PCP; no actual PCP was found.

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428, Magistrate’s Report & Recommendation (“R&R”) at 6-7.)

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cc: 9th Circuit Court of Appeal

All three

(Dkt. No.
He was

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sentenced to two life sentences and another sentence of 20 years,

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all to run concurrently. (Cr. Dkt. No. 245.) Plaintiff appealed his

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conviction and sentence to the Ninth Circuit, which vacated the

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conviction as to the latter two charges but left the life sentence

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for the first charge intact.

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*1, *3 (9th Cir. Oct. 29, 1997).

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United States v. Brim, No. 96-50530,

Various petitions for relief have followed over the

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intervening years.

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the Court denied Plaintiff’s Motion to Vacate, Set Aside or Correct

Relevant to this order, on November 24, 2003,

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Sentence pursuant to 28 U.S.C. § 2255.

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Court denied Plaintiff’s motion to re-consider that original denial

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under § 2255, as well as denying a motion under Fed. R. Crim. P. 36

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to re-open the judgment to correct an alleged “clerical error.”

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(Cr. Dkt. No. 462.

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(underlying motions).)

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to the United States Court of Appeal, Ninth Circuit, creating

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Appeal No. 13-56477.

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On September 14, 2012, the

See also Cr. Dkt. No. 461 & Civ. Dkt. No. 39
Plaintiff has since appealed that decision

(Cr. Dkt. No. 484.)

On July 19, 2013, the Court also denied another motion for

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relief under § 2255, as well as motions for appointment of counsel

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and corrective judgment.

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appealed that decision to the Ninth Circuit as well, creating

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Appeal No. 14-55792.

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(Cr. Dkt. No. 483.)

Plaintiff has

(Cr. Dkt. No. 491.)

On May 21, 2014, the circuit court issued an order remanding

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the case to this Court for the limited purpose of granting or

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denying a Certificate of Appealability (“COA”) in each of the above

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appeals.

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I. Dkt. No. 484/Appeal No. 13-56477
“A certificate of appealability may issue . . . only if the

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applicant has made a substantial showing of the denial of a

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constitutional right.”

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was in response to two motions.

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for relief were, generally, (1) “newly discovered evidence” that

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showed Plaintiff’s innocence as to conspiracy, and (2) both “newly

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discovered evidence” and clarifications regarding expert reports

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discussing how much PCP could have been made from the quantities of

28 U.S.C. § 2253.

The order at issue here

In the first motion, the grounds

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precursor found in Plaintiff’s possession.

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The second motion alleged, similarly, that the magistrate had made

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a “clerical error” in construing the expert reports.

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461 at 5-7.)

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(Civ. Dkt. No. 39.)

(Cr. Dkt. No.

To meet the “substantial showing” requirement of § 2253, a

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petitioner must show that “reasonable jurists could debate whether

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. . . the petition should have been resolved in a different manner

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or that the issues presented were adequate to deserve encouragement

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to proceed further.”

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The Court denied the motions for both procedural and substantive

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reasons.

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Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Procedurally, the Court treated the motions as motions for

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relief under 28 U.S.C. § 2255, although they were framed by

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Plaintiff as motions under Fed. R. Civ. P. 60(b) and Fed. R. Crim.

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P. 36.

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revisit a § 2255 petition.

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motions were untimely and successive.

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However, because reasonable jurists might disagree that Plaintiff

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was, in fact, attempting to lodge a § 2255 petition under a

This is because both motions were ultimately attempts to
The Court therefore held that the

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(Civ. Dkt. No. 43 at 2.)

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different name in his latter motions, the Court also briefly

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addressed the merits of his motions and found them groundless.

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(Id. at 2-3.)

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address the merits of the motions in assessing the request for a

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COA.

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A.

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Therefore, the Court also finds it appropriate to

Evidence Showing Actual Innocence of Conspiracy
As to the “new” evidence regarding the conspiracy, it

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consisted primarily of a supposed inconsistency between police

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testimony before the grand jury that the co-defendants had “come

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together” and trial testimony that they had not been found

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together.

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already on the record, and second, the evidence Plaintiff claims

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would have been helpful to him was put before the jury.

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Plaintiff’s own motion showed that the supposedly exculpatory

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testimony was in the trial transcript.

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No reasonable jurist could find a constitutional violation on this

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issue.

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B.

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But, first, this is not “new” evidence, as it was

(Civ. Dkt. No. 39 at 5-6.)

Expert Opinions, Letters, and Reports
Plaintiff was sentenced according to federal sentencing

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guidelines, which set a “base offense level” in drug cases

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according to the amount of the drug a defendant possessed or

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manufactured.

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http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/1995/

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1995_Guidelines_Manual_Full.pdf.

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manufacture the drug in question, but no drugs are actually seized,

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the base offense level is calculated from the amount of the drug

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the defendant could have manufactured.

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seizure . . . the court shall approximate the quantity of the

USSG § 2D1.1(c) (1995), available at

Where the charge is conspiracy to

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“Where there is no drug

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controlled substance.”

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U.S.S.G. 2D1.1, Commentary n.5 (1995)

(emphasis added).1

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Plaintiff was convicted based on the seizure of precursor

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chemicals used in the manufacture of PCP, rather than actual drugs.

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Thus, the amount of PCP Plaintiff could have manufactured largely

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determined his sentence, because it determined his base offense

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level.

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history category VI, (R&R at 11:11), at any base offense level of

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37 or higher Plaintiff’s maximum sentence would have been life.

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Because Plaintiff’s criminal history placed him in criminal

USSG § 5, Sentencing Table (1995).

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“Approximations of drug quantity must meet three criteria.”

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Kilby, 443 F.3d at 1141.

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proving the approximated quantity by a preponderance of the

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evidence; second, the evidence supporting the approximation “must

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possess sufficient indicia of reliability to support its probable

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accuracy”; and third, the court “must err on the side of caution.”

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Id.

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sentencing.

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district court’s and Ninth Circuit’s approximation of drug quantity

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lacked ‘sufficient indicia [of] reliability.’”).)

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First, the government bears the burden of

Plaintiff argues that these criteria were not met as to his
(Civ. Dkt. No. 39 at 32-39; id. at 33-34 (“The

Although the complete trial record is not before the Court,

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Plaintiff’s exhibits show that the trial court took its duties in

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approximating the quantity of drug product that could have been

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manufactured seriously.

(See Dkt. No. 39, Ex. 5 (trial transcript

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See United States v. Kilby, 443 F.3d 1135, 1141 (9th Cir.
2006) (“Where none of the drugs has been seized, the district court
may approximate the weight of the drugs.”); United States v.
Macklin, 927 F.2d 1272, 1281 (2d Cir. 1991) (same); United States
v. Hyde, 977 F.2d 1436, 1440 (11th Cir. 1992) (same).
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showing court’s reasoning as to drug quantity in sentencing

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Plaintiff’s co-defendant and holding that government had not met

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its burden as to definition of “PCP” or “phencylidine”).)

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Plaintiff does not and apparently cannot allege any constitutional

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error as to, for example, lack of due process.

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determination of his exact level of his base offense, the Ninth

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Circuit has already noted that even if his base offense level were

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reduced somewhat (from 38 to 36) to take into account the lack of

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purity of the precursors, he would still have been subject to a

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possible life sentence.2

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Moreover, as to the

621 (9th Cir. 2005).

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United States v. Brim, 148 F. App'x 619,

To the degree that Plaintiff is arguing that the base offense

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level could not have been approximated at all without knowing the

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purity of the precursor, that argument must be considered waived,

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as he previously argued only for a reduction to a base offense

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level of 36.

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The trial court was required to approximate the amount of drug

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product that could be manufactured.

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making some assumptions.

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have made an assumption, based on expert opinion, that the

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precursor was not so impure as to significantly decrease the

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quantities of pure PCP that could be manufactured.

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Plaintiff presented any evidence that that assumption was wrong.

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Any amount over a single kilogram of pure PCP would have resulted

Id.

In any event, the argument is not compelling.

Any approximation requires

In this case, the trial court appears to

Nor has

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This is because Plaintiff also qualified for certain
enhancements and reductions which resulted in a net 1-point
increase to his base offense level. (See R&R at 11.) Thus, if his
initial base offense level had been 36, his final offense level
after adjustments would have been 37.
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in a base offense level of at least 36, USSG § 2D1.1(c) (1995), and

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Plaintiff’s own expert has put the likely yield at somewhere

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between 21.7 and 32.5 kg if the precursor were 100% pure.

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Dkt. No. 39, Ex. 8.)

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that the precursor was, or should have been considered, so impure

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as to reduce the reasonable approximation of yield to something

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below a kilogram – that is, to something below one-twentieth of the

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low-end estimate of Plaintiff’s own expert.

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new evidence does not seriously call into question the trial

(Civ.

Plaintiff has presented no evidence at all

In short, Plaintiff’s

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court’s approximation of the yield for sentencing purposes, even if

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it is admitted that the calculation was not terribly precise.3

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Nonetheless, in the “Rule 60(b)” motion, Plaintiff argued that

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he had suffered at least two cognizable constitutional harms.

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First, he argues that his counsel in the original § 2255 petition

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was ineffective because counsel did not clarify for the Court that

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the expert reports showed that the amount of PCP could be produced

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depended on the purity of the precursor chemical, and purity was

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never proved at trial.

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argues that he gave his attorney a letter from the expert, Dr.

(Civ. Dkt. No. 39 at 36-39.)

Plaintiff

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Indeed, the act of estimating how much of a chemical would
have been produced – i.e., attempting to speculate about a
counterfactual – is inherently fraught with the possibility of
significant error. Moreover, clandestine labs run by amateurs will
by their nature be inconsistent in their chemistry – sometimes to
the point of explosion, as is well-known, but much more often
resulting in products of varying quality. It is questionable
whether estimating the production capacity of a hypothetical lab
makes sense, as opposed to simply sentencing based on possession of
a given amount of precursor. Nonetheless, when defendants are
charged with possession of the final drug, but no such drug exists,
Congress has commanded the courts to estimate a hypothetical
amount, and this command is not quite so unmoored from due process
as to be unconstitutional – even if it is likely to yield somewhat
inconsistent sentencing from case to case and judge to judge.
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Williams, clarifying that point, but that the attorney did not

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present that letter to Court.

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this Court both relied on the quantities given in Plaintiff’s

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expert’s official report.

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– either a general error warranting vacating of his sentence, or a

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“clerical error,” in the sense that the Court misconstrued the

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report’s figures.

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(Id.)

Instead, the magistrate and

Plaintiff argues that this was in error

(See generally Cr. Dkt. No. 461.)

As a second means of approaching more-or-less the same issue,
Plaintiff claims that there was, in essence, a Brady violation in

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the § 2255 process, because the government did not turn over to him

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an affidavit from a different expert in his co-defendant’s case

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that would also have clarified the need to assess precursor purity.

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(Civ. Dkt. No. 39 at 29-30.)

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Assuming arguendo that Plaintiff’s motion really was a proper

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Rule 60(b) motion, the Court had broad equitable discretion to

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provide relief from its own order, provided Plaintiff showed

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“extraordinary circumstances” justifying the relief.

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v. Sparks, 685 F.2d 1128, 1130 (9th Cir. 1982).

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however, the Court found that the “new” information Plaintiff has

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presented would not have changed the outcome of the original

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petition and did not justify relief.

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1.

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United States

In this case,

Ineffective Assistance of Counsel
Plaintiff’s claim of ineffective assistance of counsel fails

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for three reasons.

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counsel at a § 2255 proceeding, and therefore there can be no

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ineffective assistance of counsel claim.

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50 F.3d 1448, 1456 (1995).

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contends was not presented to the Court was written in 2004, while

First, there is no constitutional right to

Sanchez v. United States,

Second, the letter that Plaintiff

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the Court adopted the magistrate’s report and recommendation in

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2003.

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had no opportunity to present the letter while the original § 2255

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motion was being considered, and thus could not have been

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ineffective in not doing so.

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presented to the magistrate, it would have been at best redundant,

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because other evidence before the magistrate already made clear

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that the final yield calculation would be lower if the precursors

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were not pure.

(Dkt. No. 31.)

Thus, Plaintiff’s post-conviction counsel

Third, even if the letter had been

The R&R specifically notes that Dr. Williams’

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original report “cautioned that because no quantitative analysis

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had been performed, ingredients that were less than one hundred

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percent pure would cause the yield to be lower than he calculated.”

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(R&R at 12.)

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his lawyer should have presented to the magistrate, says much the

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same thing as the original report:

The 2004 “clarifying” letter, which Plaintiff alleges

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A quantitative analysis was not done on the piperidine or the

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PCC . . . .

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Most precursors in clandestine [drug manufacture] are not pure

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and thus the expected actual yield would be less than that

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which I gave in my letter to you.

In my report, I assumed that each was 100% pure.

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(Civ. Dkt. No. 39, Ex. 8.)

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reiterated the point, it would not have meaningfully changed the

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analysis conducted by the magistrate, who had already taken the

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purity problem into account.

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2.

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While the 2004 letter might have

Brady Violation
Rule 60(b)(3) also provides room for relief from a judgment if

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there was misconduct by an opposing party.

Here, however, there

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has not been misconduct by the government.

Plaintiff asserts that

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the government committed a Brady violation when it did not turn

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over to him the affidavits and other statements made by Plaintiff’s

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co-defendant’s expert witness, Dr. Booker.

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fatally flawed.

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However, this claim is

A Brady violation occurs when the government suppresses

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exculpatory information.

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(1963).

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controls the information and can hide it from the defendant’s view.

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The government is not obliged to point out the existence of every

Brady v. Maryland, 373 U.S. 83, 87

This strongly implies that the government in some way

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piece of exculpatory information that exists somewhere in the world

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– let alone the existence of an expert opinion with which other

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experts could disagree and did disagree.

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not have a duty to inform a defendant that a co-defendant has put

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on or will put on expert testimony contradicting the government’s

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expert testimony – especially when the defendant has had a fair

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opportunity to call his own experts, and most especially when the

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thrust of the co-defendant’s expert’s opinion has been placed in

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the public record.

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discussing Dr. Booker’s opinion).)

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C.

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Thus, the government does

(Dkt. No. 39, Ex. 5 (trial court transcript

Conclusion
Plaintiff’s “newly discovered” evidence as to the estimated

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drug quantity provided no new substantive information, did not show

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a Brady violation, and did not call into question the Court’s or

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the Ninth Circuit’s conclusions on previous rounds of review.

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reasonable jurist could disagree with these conclusions.

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No

However, Rule 60(b)(6) allows relief for “any . . . reason

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that justifies” it.

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case while ruling on these motions, the Court’s attention has been

During the course of reviewing Plaintiff’s

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drawn to the original sentencing documents.

In particular, the

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Court notes that the Judgment and Commitment Order reads as

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follows:

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[I]t is the judgment of the Court that the defendant is hereby

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committed to the custody of the Bureau of Prisons to be

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imprisoned for a term of: Life.

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imprisonment on each of Counts 1 and 4, and 240 months on

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Count 3 of the Indictment, all terms to be served

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concurrently.

This term consists of life

If released from imprisonment, the defendant

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shall be placed on supervised release for a term of 10 years .

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. . .

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(Emphases added.)

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potentially ambiguous.

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life sentences.

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is not possible under a life sentence.4

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This statement of the sentence imposed is
On the one hand, it seems to impose two

On the other hand, it contemplates release, which

Nor does the order simply set conditions of supervised release

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in the alternative, in case the life sentences are vacated or

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overturned but the 240-month sentence remains, as can be seen in

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the next sentence:

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This term [of supervised release] consists of 10 years on each

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of Counts 1 and 4, and 3 years on Count 3, all such terms to

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run concurrently.

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(Emphasis added.)

Counts 1 and 4 are the counts on which Plaintiff

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received life sentences.

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supervised release as to the supposed life sentences.

Thus, the order clearly contemplates
This creates

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Parole in the federal system was abolished in 1984. See
Pub.L. No. 98-473, Title II, Sec. 218(a)(5), 98 Stat. 2027 (Oct.
12, 1984).
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an ambiguity on the face of the sentence.

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and sentences were vacated as to Counts 3 and 4, United States v.

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Brim, No. 96-50530, *1, *3 (9th Cir. Oct. 29, 1997), the remaining

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life sentence still suffers this ambiguity.

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at issue is a life sentence, a reasonable jurist could see the

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ambiguity on the face of Plaintiff’s sentence as requiring relief

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under Rule 60(b)(6).

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Although the judgment

Because the sentence

It is therefore possible that the Court was incorrect in
denying Plaintiff’s motion, and a COA is warranted.
II. Dkt. No. 483/ Appeal No. 14-55792

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Plaintiff has asked to “withdraw” his “pending motion for

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request of COA.”

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the impression that such a “withdrawal” will expedite his appeal.

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In fact, the Court is under an order from the Ninth Circuit to

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consider the COA question, and Plaintiff’s appeal will not proceed

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until the Court renders an answer on that point.

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495.)

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hereby denies the COA, because Plaintiff cannot make a substantial

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showing of a constitutional violation.

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(Cr. Dkt. No. 496.)

Plaintiff seems to be under

(Cr. Dkt. No.

Therefore the Court considers the merits of the appeal and

The order at issue here denied relief requested on three

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grounds.

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Supreme Court cases.

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procedural reasons – a second or successive motion must also be

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“certified . . . by a panel of the appropriate court of appeals,”

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28 U.S.C. § 2255(h), and Plaintiff had failed to secure such

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certification.

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to meet minimal procedural requirements is not a constitutional

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violation.

First, it denied relief under a motion based on two new
Relief was denied without prejudice for

(Cr. Dkt. No. 483 at 2-3.)

Requiring a petitioner

Second, the order denied a “request for corrective
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judgment.”

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precursor purity issue discussed above.

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reasons discussed in Part I, no new evidence compels the Court to

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reconsider the issue.

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appointment of counsel.

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there is no constitutional right to counsel in habeas corpus

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proceedings.

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constitutional violation.

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This was, in essence, a motion to reconsider the
(Id. at 3.)

For the

Third, the order denied a request for the
(Id. at 3-4.)

As explained in the order,

Therefore, denial of appointment of counsel was not a

The Court finds that no reasonable jurist could disagree with

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its denial of relief and that a COA is not justified.

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III. Conclusion

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For the foregoing reasons, the Court DENIES Plaintiff a COA as

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to Appeal No. 14-55792, but grants it as to Appeal No. 13-56477.

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IT IS SO ORDERED.

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Dated: April 14, 2015
DEAN D. PREGERSON
United States District Judge

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