Brown v. United States of America

Filing 37

ORDER denying 35 Motion Pursuant to Fed.R.Civ.P. 60(b), (5) and (6). Signed by U. S. District Judge Lawrence L. Piersol on 03/04/14. (Attachments: # 1 Doc. 2070 from CR07-40055, # 2 Doc. 2072 from CR07-40055, # 3 Doc. 2076 from CR07-40055) (CMS)

Case 4:07-cr-40055-LLP Document 2070 Filed 05/24/13 Page 1 of 6 PagelD #: 9625

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF SOUTH DAKOTA

Tyler Brown
Petitioner,

Case No.4:07-CR-400S5-LLP

vs.

Cv.No.4:11-CV-041S1-LLP

UNITED STATES OF AMERICA
Respondent.
Motion Pursuant
To
Fed.R.Civ.P.60(b) , (S)and(6)

Comes Now, Tyler Brown, your Petitioner in the above
enumerated case, respectfully files with this Honorable Court,
(here-and-after), Fed.R.Civ.P.60(b), to correct the procedural
error and remand back for resentencing . . In support of,
Petitioner states the following:
STATEMENT OF JURISDICTION
The United States District Court for the District of South
Dakota, Southern Division, has jurisdiction over offenses
against laws of the United States which occur in that
district, 18 U.S.C. section 3231.
REQUEST FOR LIBERAL CONSIDERATION
Petitioner does not have any training in legal reserach r
therefore requests this Honorable Court to liberally construe

Case 4:07-cr-40055-LLP Document 2070 Filed 05/24/13 Page 2 of 6 PagelD #: 9626

this motion pursuant to Fed.R.Civ.P.60(b), drafted by the
Petitioner, in accordance with ruling in HAINES v KERNER,404
U.8.519 (1972), where a pro-se Petitioner is held to aless
stringent standard than formal papers drafted by attorneys.
Therefore, Petitioner urges this Court to liberally construe
the pleading in this proceeding.

STATEMENT OF CASE FACTS
ON February 3,2009, a federal grand jury returned a.one count
indictment charging Petitioner with Conspiracy to Distribute a
Controlled Substance in

of 21 U.S.C. section B41(a) (1) and

846.
Petitioner pled not guilty and went to trial.

He was found

to be guilty by the jury on May 26,2009.
A sentencing hearing was held on April 2,2010, and Petitioner
was sentenced to 120 months by the United States Sentencing
Guidelines.
filed a timely notice to appeal his conviction and sentence.
Petitioner made several claims of ineffective assistance of
counsel, and moreover, did the District Court err by failing
to consider it's authority to impose a variance sentence to
reflect a 1 to 1 ratio.
The 8th Circuit Court of Appeal Affirmed the judgment stating
in part, that, "general savings statue, 1 U.S.C. section 109,
requires application a penalties in place at the time crime
was committed unless new enactment expressly provides for it's
own retroactive application; Fair

Act 2010 contains no

express statement that it is retroactive and no such express
intent ca be inferred from its plain language. Thus/the

Case 4:07-cr-40055-LLP Document 2070 Filed OS/24/13 Page 3 of 6 PagelD #: 9627

statutory minimum existing at the time offense was committed
governs judgment was entered on October 12,2010
On October 19,2011, Petitioner filed a timely motion to
vacate, set aside or correct sentence pursuant to 28 U.S.C.
section 2255, arguing the Fair

Act 2010 and Ineffective

assistance of Counsel ..
Certificate of

was filed untimely on February 25,2013 and

dismissed on May 2,2013.
Petitioner now files a timely motion pursuant to
Fed.R.Civ.P.60 (b) Challenging procedural errors made in the
District and Appellate Courts.

Petitioner Claims there has been a procedural error

to The

Fair Sentencing Act 2010, by the Courts not applying
retroactivity to his case while on DIRECT REVIEW, violating
his 5th Amendment right to equal protection and constitutional
criminal procedures. Petitioner was sentenced April 2,2010 to
the mandatory minimum of 10 years and/or 120months, with a
guideline sentence based on a 1 to 1 ratio, 41 to 51 months.
SEE. Pre-sentence Report made by Senior US Probation officer
Kim H. Williams. Dated October 29,2009.

On April 8,2010,

Petitioner filed a timely notice of appeal and on October
12,2010 a judgment was entered. On August 3,2010 The Fair
was enacted, leaving Petitioners case

Act

pending DIRECT REVIEW.

The Supreme Court has ruled that new constitutional rules of
criminal procedures "should always be applied

to cases on

direct review. See: MACKEY v. UNITED STATES". On certiorari,
the United States Supreme Court reversed the judgement of the

,
i

Case 4:07-cr-40055-LLP Document 2070 Filed OS/24/13 Page 4 of 6 PagelD #: 9628

Supreme Court of Virginia and remanded the case for further
proceedings. In an opinion by Thomas,J., joined by
Blackmum,Stevens,Scalia, and Souter,JJ., and joined in part
(as to point 3-5) by Kennedy and white,JJ., it was held that
(1) When the United States Supreme Court applies a rule of
federal law to the parties before it, such rule is the
controlling interpretation of federal law and must be given
full retroactive effect in all cases still open on direct
review events predate or postdate the Supreme Courts
announcement of the rule. Citing: HARPER v. VIRGINIA DEPT. OF
TAXATION,

It was held that the rule BATSON v. KENTUCKY is

applicable to litigation that was pending on direct state of
federal review,or not yet final, when Batson was decided,
since (1) A new rule for conduct of criminal

is to be applied

retroactively to all cases, state or federal, which are then
pending on direct review or not yet final. Citing: GRIFFITH v.
KENTUCKY.

In the Supreme court for reasons which have never

been explained, the Courts appear to have assumed that if a
new rule is announced and retroactivity applied in one habeas
corpus casej See TEAGUE v. LANE, that it must be applied
retroactively in all other cases on direct review corning
before the Courts
The government has argued that the general savings clause
applies, which preserves conviction and sentenced entered is
preserve. The Savings clause does not preserve a superceded
criminal law when this law (1) No longer serves any
legislative purpose,

(2) Undermines the Constitution, See;

HAMM v. CITY OF ROCKHILL,379 U.S. 309 (1965).i UNITED STATES
v. CHAMBERS, 291 U.S. 217 (1934) instead the application law

Case 4:07-cr-40055-LLP Document 2070 Filed 05/24113 Page 5 of 6 PagelD #: 9629

is the law in effect while the case is still pending. ie, THE
FAIR SENTENCING ACT 2010. In addition,The Fair Sentencing Act
2010, must be interpreted in Petitioners case to avoid
Constitutional concerns. The Doctrine of Constitutional
avoidance requires that these statutes not be interpreted in
such a way that they might offend the Constitution. Finding
The FSA does not apply simple disregards the Principle of
Equal Protection and settled Supreme Court Authority.
The Courts has also stated that it does not have authority to
sentence Petitioner to The Fair Sentencing Act based on the
FSA not being enacted at the time of sentencing. The Courts
stated they were bound by the Statutory mandatory minimum.
Now that the Fair Sentencing Act of 2010 passed while
Petitioner was on direct review, there are has been recent
discrepancies amongst circuits as to how to apply
retroactivity. Petitioner argues that, the Sixth Circuit of
Appeals on , May 17,2013, ruled that The FSA of 2010 is
retroactive on a 2 to 1 decision by a 3 panel judge, which
shows that The Courts has and had the authority to sentence
Petitioner to a 18 to 1 ratio sentence. See: UNITED STATES v.
BLEWETT, No 12-5226 (2013).

Although Petitioners case may

have seemed without review inapplicable at the time of direct
review. The Supreme Court ruled clearly on, GRIFFITH v.
KENTUCKY, HARPER v. VIRGINIA DEPT. OF TAXATION, TEAGUE v.
LANE,

and MACKEY v. UNITED STATES,

that case always on

. direct review be made retroactively. Therefore Petitioner
should be resentenced under The New Fair Sentencing Act 2010.

CONCLUSION

Case 4:07-cr-40055-LLP Document 2070 Filed 05/24/13 Page 6 of 6 PagelD #: 9630

WHEREFORE, The Petitioner respectly request that the Courts
vacate or remand Petitioner back for resentecing, finding The
Fair Sentencing Act 2010 to be applied, by regarding the

principle of Equal Protection and settled Supreme Court
Authority. Therefor, sentencing this Petitioner to the new
mandatory minimum of 60 months (5 years) .
CERTIFICATE OF SERVICE

I,TYLER BROWN,hereby certify that I served a true and correct
copy of this Fed.R.Civ.P 60 (b), (5) ,and

(6). Which is deemed filed at the time the inmate places the
filing in the internal prison mail system. See HOUSTON v.
LACK, 487 U.S. 266 (1988)
to :

(Prison Mailbox Rule). Addressed

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