Brown v. USA
Filing
5
ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255), DISMISSING CASE with prejudice, and GRANTING 4 MOTION to Withdraw as Attorney Ethan Skaggs/Office of the Federal Public Defender. Further, the Court DECLINES to issue a certificate of appealability. The Court DIRECTS the Clerk of the Court to enter judgment. Signed by Judge David R. Herndon on 2/10/16. (lmp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
REGINALD BROWN,
Plaintiff,
vs.
Civil No. 15-CV-01385-DRH
Criminal No. 10-30165-DRH
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM and ORDER
HERNDON, District Judge:
This matter is before the Court on petitioner Reginald M. Brown’s motion to
vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1). For
the following reasons, petitioner’s § 2255 is summarily DENIED as untimely.
On September 22, 2010, petitioner was indicted under 18 U.S.C. §
922(g)(1) and 924(e) for knowingly possessing a firearm and having been
previously convicted of multiple serious drug offenses (USA v. Brown, 10-30165DRH (Doc. 1)).
On December 2, 2011, petitioner pled guilty to Count 1. The
government moved for the dismissal of Counts 2 and 3 at the time of sentencing.
Ultimately, the Court concluded that three of petitioner’s previous
convictions for drug offenses— Sale of a Controlled Substance, Distribution of a
Controlled Substance, and Distribution of a Controlled Substance near Public
Housing—qualified him as an armed career criminal. See 18 U.S.C. § 924(e)(1).
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Thus, petitioner received a sentence of 180 months imprisonment, the statutory
minimum (Doc. 36). Petitioner did not appeal his conviction.
On December 18, 2015, petitioner filed the instant petition, alleging
ineffective assistance of counsel based upon a claim that he does not have the
prerequisite prior convictions to have been sentenced under the Armed Career
Criminal Act (ACCA). Thereafter, pursuant to Administrative Order 176, the
Court appointed the Federal Public Defender to determine if the allegations
surrounding Brown’s challenge to the Armed Career Criminal Statute (ACCA)
were based on recent changes of law under the holding in Johnson v. United
States, 135 S. Ct. 2551 (2015). The Federal Public Defender now moves to
withdraw upon determining that that petitioner is not seeking relief under the
Johnson holding (Doc.4). Specifically Brown claims that one of his prior
convictions that was used to enhance his sentence only qualifies as a class C
felony under Missouri law and, as such, only carried a 7 year maximum sentence.
Therefore petitioner argues that it does not qualify as a prerequisite conviction for
sentencing under the ACCA. 1
Pursuant to Rule 4 of the Rules Governing § 2255 cases, the Court must
give initial consideration to petitioner’s claims. Rule 4 provides that if it plainly
appears from the motion, any attached exhibits and records of prior proceedings
that the moving party is not entitled to relief, the judge must summarily dismiss
1
Upon review of the matter, it has been determined that the Cole County Missouri Case
19CR01960250 for Distribution of a Controlled Substance, which is correctly noted in ¶
32 Brown’s PSR, (USA v. Brown, 10-30165-DRH (Doc. 35)) qualifies as a Class B Felony
under Missouri Law.
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the motion and direct the clerk to notify the moving party. The Court has reviewed
Brown’s petition to determine whether he might be entitled to relief. For
procedural reasons, the Court determines that he is not. 28 U.S.C. § 2255(f)
imposes a one year period of limitations upon the filing of a motion attacking a
sentence imposed under federal law. This period generally begins to run on the
date on which the judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1).
Here, the Court entered judgment on January 13, 2012. Petitioner did not appeal
his conviction. Thus, it became final 14 days after it was entered and the deadline
to file a notice of appeal expired.
28 U.S.C. § 2255(f)(1); FED. R. APP. P.
4(b)(1)(A). As petitioner filed his § 2255 motion on December 18, 2015, it is
clearly untimely. Petitioner’s judgment of conviction was final for well over three
years prior to the filing of his instant petition.
The § 2255 limitations period can be tolled in two ways: equitable estoppel
or equitable tolling. Clarke v. United States, 703 F.3d 1098, 1101 (7th Cir. 2013).
Equitable estoppel applies where the government takes active steps to prevent the
petitioner from timely filing suit. Id. Equitable tolling applies where a petitioner
has diligently pursued his rights but some “extraordinary circumstance”
prevented his timely filing. Holland v. Florida, 560 U.S. 631 (2010) (construing §
2244(d)'s similar one-year limitation for § 2254 petitions); see Clarke, 703 F.3d at
1101. The Court’s review of Brown’s file demonstrates neither doctrine applies.
The latter doctrine, equitable tolling, coincides with § 2255(f)(4), which
states the one year limitation period shall run from, “the date on which the facts
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supporting the claim or claims presented could have been discovered through the
exercise of due diligence.” 28 U.S.C. § 2255(f)(4). Brown recognizes that he filed
his § 2255 motion more than one year after his judgment became final and thus
attempts
to
rely
upon
§
2255(f)(4).
Brown
alleges
that
extraordinary
circumstances exist in this case “because defense counsel never explained…the
elemental criteria for an ACCA enhancement.” (Doc. 1-1 pg. 10). Brown states that
he was only aware of his three prior drug offenses, but not that he faced a
mandatory minimum sentence. Brown went on to argue that nowhere in his PSR
did it mention a mandatory sentence. 2 However, the Court finds that petitioner's
arguments are not properly before the Court.
Under Section 2255(f)(2), petitioner cannot point to some inability to his
raising the instant claim earlier. Also, under Section 2255(f)(3), petitioner does
not point to a Supreme Court case that recognizes rights made retroactive to his
case. As to Section 2255(f)(4), petitioner does not point to a newly discovered
“fact.” Finally, petitioner has not alleged any “extraordinary circumstances”
warranting equitable tolling of the statute of limitations. See Holland v. Florida,
560 U.S. 631 (2010) (holding that equitable tolling is only appropriate when an
“extraordinary circumstance” stood in the way of a timely filing); Johnson v.
Chandler, 224 Fed. App'x. 515, 519 (7th Cir.2007) (“[W]e have yet to identify a
factual circumstance so extraordinary that it warrants equitable tolling.”). As
2
The Court notes that Brown’s PSR states that “there is a statutory minimum sentence of
15 years relative to Count 1. Therefore, the effective guideline range is 180 to 210
months.” (USA v. Brown, 10-30165-DRH (Doc. 35 ¶ 70).
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such, the Court cannot consider petitioner's arguments on the merits.
Accordingly, petitioner's Section 2255 petition is DENIED.
CERTIFICATE OF APPEALABILITY
Under Rule 11(a) of the RULES GOVERNING SECTION 2255 PROCEEDINGS, the
“district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.”
A habeas petitioner does not have an
absolute right to appeal a district court’s denial of his habeas petition; he may
appeal only those issues for which a certificate of appealability have been granted.
See Sandoval v. United States, 574 F.3d 847, 852 (7th Cir. 2009). A habeas
petitioner is entitled to a certificate of appealability only if he can make a
substantial showing of the denial of a constitutional right. Miller-El v. Cockrell,
537 U.S. 322, 336 (2003); 28 U.S.C. § 2253(c)(2). Under this standard, a
petitioner must demonstrate that, “reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were ‘adequate to deserve encouragement to
proceed further.’” Id. (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Where a district court denies a habeas petition on procedural grounds, the
court should issue a certificate of appealability only if (1) jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a
constitutional right, and (2) jurists of reason would find it debatable whether the
district court was correct in its procedural ruling. See Slack, 529 U.S. at 485.
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Reasonable jurists could not debate that the petition should have been
resolved in a different manner. Reasonable jurists would not debate that the
petition does not state a valid claim of the denial of a constitutional right, nor
would they debate that the petition is untimely. Therefore, the Court declines to
certify any issues for review pursuant to 28 U.S.C. § 2253(c).
CONCLUSION
For the aforementioned reasons, petitioner Reginald M. Brown’s motion
pursuant to 28 U.S.C. § 2255 is DENIED as untimely (Doc. 1), and the Court
shall not issue a certificate of appealability. The Federal Public Defender’s motion
to withdraw as attorney is GRANTED (Doc. 4). This action is DISMISSED with
prejudice, and judgment shall enter accordingly.
IT IS SO ORDERED.
Signed this 10th day of February, 2016.
Digitally signed
by Judge David
R. Herndon
Date: 2016.02.10
14:48:41 -06'00'
United States District Judge
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