Brimage v. USA

Filing 3

Judge Patti B. Saris: ORDER entered. MEMORANDUM AND ORDER as to Frank Brimage: it is hereby Ordered that Brimage's habeas petition forwarded from the Southern District of New York, be TRANSFERRED by the District Court Clerk to the Clerk's O ffice for the First Circuit, forthwith. It is further Ordered that, in light of the transfer of this action, Brimage v. United States, Civil Action No. 12-11461-PBS, shall be DISMISSED and terminated as a pending case on this Courts docket, and the Motion to Vacate (Docket No. 228) shall be DENIED as moot in view of this Transfer Order. (PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA,
v.
FRANK BRIMAGE, JR.
Defendant.

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CRIMINAL NO. 95-10046-PBS
(Related to
C.A NO. 12-11461-PBS)

MEMORANDUM AND ORDER
August 13, 2012
SARIS, U.S.D.J.
On July 23, 2012, District Judge Loretta A. Preska of the
United States District Court for the Southern District of New
York issued a Transfer Order in the case Brimage v. Billingsley,
Civil Action No. 12-4576 (LAP).

That Transfer Order directed

that petitioner Frank Brimage, Jr.’s (“Brimage”) petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Docket No.
228 in this action) be transferred to the United States Court of
Appeals for the First Circuit (“First Circuit”).1
Brimage, currently a prisoner in custody at FCI Otisville in
Otisville, New York, challenges his criminal conviction in this
District, on the grounds that he is “actually innocent” of the
crime with which he was charged.2

He claims that the government

1

The petition was filed on June 11, 2012 in the Southern
District of New York.
2

On September 27, 1995, Brimage was convicted by a jury of
being a felon in possession of a firearm and ammunition. On
February 1, 1996, this Court imposed a term of imprisonment of

impermissibly amended the Indictment at trial by broadening the
possible basis for conviction to include ammunition and firearms
which were not charged in the Indictment.

See Transfer Order

(Docket No. 228-5).
Brimage sought to invoke the savings clause of 28 U.S.C.
§ 2255 in order to bring this § 2241 habeas petition; however,
Judge Preska determined that the petition must be construed as a
motion brought under § 2255, and she rejected Brimage’s argument
that § 2255 was an inadequate or ineffective remedy to challenge
his continued detention simply because he could not meet AEDPA’s
gate-keeping requirements.

Thus, she found this petition could

not be raised under § 2241, and that the petition constituted a
second or successive § 2255 motion (as Brimage’s prior § 2255
motion had been decided on the merits).3

In light of this, Judge

262 months. See Judgment (Docket No. 166). Thereafter,
Brimage’s Motion for a New Trial was denied. Brimage filed an
appeal, and on July 1, 1997, the First Circuit affirmed the
Judgment of this Court. See United States v. Brimage, 115 F.3d
73 (1st Cir. 1997).
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This Court previously denied Brimage’s three prior attempts
challenging his conviction. On August 30, 1998, Brimage filed a
Motion to Vacate Sentence under § 2255 (Docket No. 216). See
Brimage v. United States, Civil Action No. 98-12462-PBS. On
November 6, 1998, Brimage filed a Supplemental petition under
§ 2255. On October 25, 1999, this Court issued a Memorandum and
Order (Docket No. 7) denying the first motion and rejecting
Brimage’s arguments that a Special Agent was in the jury room
during deliberations; that his trial counsel rendered ineffective
assistance of counsel by failing to argue that the government
entrapped him into criminal activity. The same day, this Court
issued an Order (Docket No. 8) denying the supplemental motion to
vacate under § 2255. Thereafter, on July 25, 2005, and again on
2

Preska directed transfer of the petition because Brimage must
first obtain permission from the First Circuit to file the case
in the District Court.
For some reason, the case file was transferred to this
District Court instead of the First Circuit.

The Clerk’s Office

opened the matter as a new case and assigned in as Brimage v.
United States, Civil Action No. 12-11461-PBS.
Accordingly, it is hereby Ordered that Brimage’s habeas
petition forwarded from the Southern District of New York, be
TRANSFERRED by the District Court Clerk to the Clerk’s Office for
the First Circuit, forthwith.
It is further Ordered that, in light of the transfer of this
action, Brimage v. United States, Civil Action No. 12-11461-PBS,
shall be DISMISSED and terminated as a pending case on this
Court’s docket, and the Motion to Vacate (Docket No. 228) shall
be DENIED as moot in view of this Transfer Order.

SO ORDERED.

/s/ Patti B. Saris
PATTI B. SARIS
United States District Judge

September 28, 2005, Brimage filed motions in his criminal case
pursuant to Rule 60(b) based on newly discovered evidence (Docket
Nos. 225 and 226). On October 3, 2007, this Court issued a
Memorandum and Order (Docket No. 227) denying Brimage’s request
for review of his sentence enhancement under 18 U.S.C. § 924(e),
see Docket No. 225, treating his request as a second or
successive § 2255 motion. On March 12, 2012, this Court entered
an Electronic Order finding his second request (Docket No. 226)
to be moot.
3