Brown v. United States of America
ORDER: Petitioner Gabriel J. Brown, Jr.'s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 1 is DISMISSED. The Clerk is directed to deny all pending motions and close this case. The Clerk is directed to terminate from pending status the motion to vacate found at Dkt. 90 in the underlying criminal case, case number 8:13-cr-108-T-30MAP. Signed by Judge James S. Moody, Jr on 10/12/2016. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
GABRIEL JAMES BROWN, JR.,
Case No: 8:16-cv-1749-T-30MAP
Crim. Case No: 8:13-cr-108-T-30MAP
UNITED STATES OF AMERICA,
ORDER OF DISMISSAL
THIS CAUSE is before the Court on Petitioner Gabriel Brown’s motion, under 28
U.S.C. § 2255, to Vacate, Set Aside, or Correct Sentence. (CV Dkt. 1). Petitioner seeks
relief in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551
(2015), which held that the residual clause of the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e)(2)(B)(ii), defining a violent felony as a crime that “involves conduct
that presents a serious potential risk of physical injury to another,” is unconstitutionally
vague. See Johnson, 135 S. Ct. at 2563. Petitioner, whose conviction became final in 2014,
argues that he is entitled to sentence relief because the Johnson holding renders his
sentence under a similar sentencing provision, 18 U.S.C. § 924(c), unconstitutional as well.
In short, he argues that because Johnson entitles him to sentence relief, it likewise renders
his motion timely. See 28 U.S.C. § 2255(f) (granting a one-year limitations period in which
to file a petition from “the date on which the right asserted was initially recognized by the
Supreme Court . . . .”). The government filed a motion to dismiss Petitioner’s motion as
untimely (Dkt. 3), arguing primarily that the Johnson holding did not extend to Petitioner’s
sentence and thus no new right applicable to Petitioner has been recognized by the Supreme
Court. Petitioner responded (Dkt. 4) and provided a Notice of Supplemental Authority
(Dkt. 8), and the government replied (Dkt. 7). The Court has carefully reviewed these
filings and the applicable law and concludes that Johnson does not entitle Petitioner to any
relief. His Petition will be dismissed.
In June 2013, Petitioner, indicted on multiple counts, entered into an agreement with
the government to plead guilty to Counts IX and XI: brandishing a firearm in furtherance
of a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and (C)(i). In exchange,
the government dismissed the other counts against him. (DR Dkt. 37). The Court accepted
Petitioner’s plea and sentenced him on September 19, 2013. (CR Dkts. 48, 75).
Petitioner received a sentence of 30 months’ imprisonment for Count IX and 30
months’ imprisonment for Count XI, to run consecutively, for a total term of 60 months’
imprisonment. Petitioner’s sentence was imposed under § 924(c)(1)(A)(i), which provides:
Except to the extent that a greater minimum sentence is otherwise provided
by this subsection or by any other provision of law, any person who, during
and in relation to any crime of violence or drug trafficking crime (including
a crime of violence or drug trafficking crime that provides for an enhanced
punishment if committed by the use of a deadly or dangerous weapon or
device) for which the person may be prosecuted in a court of the United
States, uses or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the punishment provided for such
crime of violence or drug trafficking crime-(i) be sentenced to a term of imprisonment of not less than 5 years . . . .
That same statute defines “crime of violence” as one “that by its nature, involves a
substantial risk that physical force against the person or property of another may be used
in the course of committing the offense.” 18 U.S.C. 924(c)(3)(B).
Petitioner did not file a direct appeal.
Now Petitioner seeks relief under 28 U.S.C. § 2255, which permits prisoners in
custody to collaterally challenge the sentences imposed on them as unconstitutional.
Petitioner’s motion was filed on June 24, 2016, well outside the one-year period within
which to file such a motion, beginning on the day the judgment of conviction becomes
final. See 28 U.S.C. § 2255(f)(1). Petitioner contends, however, that his motion is timely
under § 2255(f)(3), which states that the one-year limitations period runs from “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.” The newly recognized right asserted by Petitioner is the Supreme
Court’s recent decision in Johnson, 135 S. Ct. at 2563. There, the Supreme Court concluded
that the residual clause of the ACCA, which increases the minimum-required sentence of
certain recidivist felons, was unconstitutionally vague. (CV Dkt. 1). And that right was
made retroactive by another Supreme Court decision, Welch v. United States, 136 S. Ct.
1257 (2016). Petitioner argues that the retroactive Johnson holding applies to his sentence
and, specifically, makes it unconstitutional.
The Court finds that it does not, as many courts in this district and elsewhere have
similarly found. See, e.g., United States v. Torres, Nos. 8:16-cv-1525-T-23MAP, 2016 WL
3536839, *3 (M.D. Fla. June 28, 2016) (“Johnson rendered the residual clause of [the
ACCA] invalid. It spoke not at all about the validity of the definition of a crime of violence
found in § 924(c)(3).”) (Merryday, C.J.) (quoting In re Hines, 824 F.3d 1334, 1336 (11th
Cir. 2016)). Johnson, in short, is inapposite. Though the definition of “crime of violence”
in § 924(c) is similar to the language of the ACCA’s now-invalidated residual clause, the
Supreme Court’s holding regarding the language in the latter was explicitly confined: “We
hold that imposing an increased sentence under the residual clause of the Armed Career
Criminal Act violates the Constitution’s guarantee of due process.” 135 S. Ct. at 2563. The
Court agrees with the government’s position that this holding may indeed signal a future
in which risk-based assessments of conduct contained in other statutes, like the statute at
issue here, may be deemed unconstitutional by the Supreme Court. The Court also agrees
with the government that such a signal is not the same as a right “newly recognized by the
Supreme Court.” 28 U.S.C. § 2255(f)(3).
Petitioner was not sentenced as an armed career criminal under the ACCA, 18
U.S.C. § 924(e). He was sentenced under § 924(c), which Johnson did not address, let
alone invalidate. Johnson does not afford Petitioner any relief from his sentence. Because
that case is inapplicable, Petitioner’s motion, filed over a year after his sentence and
conviction became final, is untimely.
The supplemental authority offered by Petitioner is likewise inapplicable. In that
case, McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), the Supreme Court concluded that “a
credible showing of actual innocence may allow a prisoner to pursue his constitutional
claims . . . on the merits notwithstanding the existence of a procedural bar” like
untimeliness. 133 S. Ct. at 1931. Here, Petitioner’s motion makes no mention, let alone a
credible showing, of actual innocence. McQuiggin does not relieve Petitioner from §
2255’s one-year limitations period.
For the reasons discussed above, it is ORDERED AND ADJUDGED that:
Petitioner Gabriel J. Brown, Jr.’s Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (CV Dkt. 1) is DISMISSED.
The Clerk is directed to deny all pending motions and close this case.
The Clerk is directed to terminate from pending status the motion to vacate
found at Dkt. 90 in the underlying criminal case, case number 8:13-cr-108-T-30MAP.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL
IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to
appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). A district court must
first issue a certificate of appealability (“COA”). Id. “A [COA] may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional right.” Id. at §
2253(c)(2). To make such a showing, Petitioner “‘must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong,’”
Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)), or that “the issues presented were adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks
omitted). Petitioner has failed to meet this burden.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not
entitled to appeal in forma pauperis.
DONE and ORDERED in Tampa, Florida on this 12th day of October 12, 2016.
Copies furnished to:
Counsel/Parties of Record
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