Brown v. USA

Filing 2

MEMORANDUM AND ORDER, The Court ORDERS the Government to file a response to the petitioner's § 2255 motion within THIRTY DAYS of the date this order is entered. The Government shall, as part of its response, attach all relevant portions of the record in the underlying criminal case. The Petitioner shall have FOURTEEN DAYS to reply to the Government's response. Signed by Judge J. Phil Gilbert on 7/26/2017. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ERIK SCOTT BROWN,
Petitioner,
v.

Civil No. 17-cv-430-JPG

UNITED STATES OF AMERICA,

Criminal No 15-cr-40045-JPG

Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Erik Scott Brown’s motion to vacate, set
aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). On November 16, 2015, the
petitioner pled guilty to one count of distribution of heroin resulting in death in violation of 21
U.S.C. § 841(a)(1) (Count 1) and (b)(1)(C) and one count of possession with intent to distribute
heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count 2). The death charged in Count
1 was of Steven Keith Scott, who had multiple drugs in his system when he died. The
Government’s expert had issued an opinion that heroin toxicity was the but-for cause of Scott’s
death, and during the plea colloquy, Brown admitted the Government would be able to prove
beyond a reasonable doubt that the heroin he provided to Scott was the but-for cause of Scott’s
death. On March 15, 2016, the Court sentenced the petitioner to serve 276 months in prison on
Count 1 and 240 months in prison on Count 2. Written judgment was entered April 28, 2016.
The petitioner did not appeal his sentence.
In his timely § 2255 motion, the petitioner raises the following claims:
1. Counsel provided ineffective assistance of counsel in violation of the Sixth Amendment
when he failed to independently investigate whether heroin toxicity was the but-for cause
of Scott’s death, the victim in Count 1, but represented to Brown that he had made such an
investigation by consulting a forensic pathologist;

2. Brown’s guilty plea and stipulation of facts were not knowing and voluntary, in violation
of his Fifth Amendment due process rights, because they were entered into in reliance on
counsel’s false statement that he had consulted with a forensic pathologist about the cause
of Scott’s death; and
3. Counsel provided ineffective assistance of counsel in violation of the Sixth Amendment
when he failed to thoroughly investigate and/or procure the services of a forensic
toxicologist prior to advising Brown to enter a guilty plea and stipulate to facts.
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United
States District Courts, the Court has determined that it is not plain from the motion and the record
of the prior proceedings that the petitioner is entitled to no relief. The Court therefore ORDERS
the Government to file a response to the petitioner’s § 2255 motion within THIRTY DAYS of the
date this order is entered. The Government shall, as part of its response, attach all relevant
portions of the record in the underlying criminal case. The Petitioner shall have FOURTEEN
DAYS to reply to the Government’s response.
IT IS SO ORDERED.
DATED: July 26, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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