Brown v. USA

Filing 11

MEMORANDUM DECISION AND ORDER DISMISSING 2255 MOTION - see order for details. Signed by Judge Dee Benson on 1/12/15. (jlw)

FILED IN UNITED STATES ni(,T'11~'"
COURT, DISTRiCT OF LJlJ.l'.i "J I

JAN f 4 2015
MARK
IN THE UNITED STATES DISTRICT Ccm'iiT
JONES, CLERK
FOR THE DISTRICT OF UTAH, CENTRAL DIVISI~PU1Y CLERK
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TIMOTHY BRIAN BROWN,
MEMORANDUM DECISION AND

ORDERDISMISSING MOTION

UNDER § 2255

Petitioner,
vs.

Case No. 2:13-CV-603

UNITED STATES OF AMERICA,
Related Case: 2:01-CR-281

Defendant.
Judge Dee Benson

This case is before the Court on Timothy Brian Brown's Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255. Having considered the motion and pleadings,
having reviewed the file, and being othe~ise fully informed, the court enters the following
Memorandum Decision and Order.

BACKGROUND
On May 9,2001, Mr. Brown was charged in a three-count indictment for producing and
possessing child pornography in violation of 18 U.S.C. §§ 2251(a) and 2252A(a)(5)(B). United

States v. Timothy Brian Brown, Case No. ~:01-CR-281-DB. The parties engaged in plea
negotiations and on July 25,2001, Mr. Brown pled guilty to Count 1 of the indictment-that he
"did employ, use, persuade, induce,

entice~

and coerce a minor to fmgage in sexually explicit

conduct for the purpose of producing a visual depiction of such conduct, which visual depiction
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was produced using materials that have been mailed, shipped, and! transported in interstate and
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foreign commerce" in violation of 18 U.S.C. § 2251 (a). (2:01-CR.281-DB, Dkt. Nos. 1,22). At
the change ofplea hearing, Mr. Brown waS placed under oath, and the court accepted Mr.

Brown's plea as being knowingly and vollintarily made. (2:01-CR!,-281-DB, Dkt. No. 22). On
November 28,2001, Mr. Brown was sentt1llced to 188 months incarceration and imposed a
$2500 fine and $1595 in restitution.

(2:01~CR-281-DB,

Dkt. Nos.,27, 28). On July 31,2012, Mr.

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0* September 13,2013. (2:01­
:

Brown filed a motion to reconsider sentence, which was denied

CR-281-DB, Dkt. Nos. 31, 32). On June 26,2013, Mr. Brown filt1d a motion for relief under 28
U.S.C. § 2255, arguing that the "Federal Government did not have Congressional Jurisdiction
based on an incorrect reading ofthe Conunerce Clause" citing the United States Supreme
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Court's decision in National Federation ofIndependent Business V. Sebelius, 183 L. Ed. 2d. 450
(2012). (2: 13-cv-00603, Dkt. No.1). Mr.1;3rown filed a supplemeht to his motion on September
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16,2013, "based on Morrison's second factor" that "he had to have known that the visual
depiction would be transferred in interstat¢ commerce ..." (2: 13-cy-00603, Dkt. No.3). The
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government responded to Mr. Brown's mQtion on March 14,2014, and Mr. Brown moved to
strike the government's answer and for a 'ldefault" judgment in hi,S favor on April 21, 2014.
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(2: 13-cv-00603, Dkt. No. 4,7). On September 29,2014, Mr. BroWn filed another supplement to
his motion based on the United States Supreme Court's decision i~ Bond v. United States, 134 S.
Ct. 2077(2014), citing language related to 'the limited powers ofilie federal government. (2:13­
cv-00603, Dkt. No. 10).
DISCUSSION
Motions under §2255 are subject to the one-year statute o£limitations commencing from
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the latest of the times set forth in §2255(f)(1)-(4). These times art:
(1) the date on which the jljdgment of conviction bbcomes final;
(2) the date on which the impediment to making a motion created
by governmental action in violation of the Constitution or laws of
the United States is removed, if the movant was! prevented from
making a motion by such g()vernmental action;
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(3) 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; o r ·
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(4) the date on which the facts supporting the daim or claims
presented could have been Idiscovered through the exercise of due
diligence.

Petitioner's judgment was entered pn November 28,2001; and he did not pursue a direct
appeaL His conviction became final for ptrrposes of §2255 when!the time expired for him to file
a timely appeal, which was fourteen days following the date judtment was entered against him.
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See Fed. R. App. P. 4(b)(1). Therefore,Petitioner's conviction became final and the one-year
statute of limitations began to run on December 12, 2001, and his §2255 motion should have
been filed on or before December 12, 2002, in order to be timely.: Because Petitioner did not file
his original §2255 motion until June 26, 2013, his motion is untimely.
Petitioner maintains that his motion is timely because he is actually innocent, citing the
recent Supreme Court decision in McQuiggin v. Perkins, 133 S. Ot. 1924 (2013). There, the
Court held "that actual innocence, ifproveid, serves as a gateway tihrough which a petitioner may
pass whether the impediment is a procedural bar... or, as in this cajse, expiration of the statute of
limitations." 133 S. Ct. at 1928. To claiml this exception, however, he "must show that it is more
likely than not than no reasonable juror would have convicted him in light ofthe new evidence."
133 S. Ct. at 1935 (citation omitted). In this case, Petitioner plea4ed guilty to the crimes, and he
does not offer any new evidence to support his claim of constituti~nal error. Therefore, the
"actual innocence" exception is not applidlble to his claim.
Petitioner otherwise states that he pleaded guilty to one count of the production of child
pornography under §2251 (a), but that his crimes were non-econorpic and completely intrastate,
and thus, there is no valid authority by which Congress could regqlate his conduct in this case.

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He maintains that the "watershed" decision of National Federation ofIndependent Business v.

Sebelius, 132 S. Ct. 2566 (2012) supports his claim, and he argues that the Court's decision in
that case overturned the Court's prior decision in Gonzales v. Raich, 545 U.S. 1 (2005).
In Raich, the Supreme Court considered whether congresslonal authority existed pursuant
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to the Commerce Clause and the Necessary and Proper Clause, to ~rohibit the completely
intrastate "cultivation and use of marijuana" using the Controlled Substances Act. Id. at 6. The
Court stated that its "case law firmly establishes Congress' power to regulate purely local
activities that are a part of an economic cl,+ss of activities that have substantial effect on interstate
commerce." Id. at 16 (citations omitted). Sebelius, by contrast, ac;1.dressed the Affordable Care
Act. See 132 S. Ct. at 2585-91. The Court there determined that the Affordable Care Act's
requirement that most Americans either obtain health insurance OJi pay a penalty was an
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unconstitutional exercise of Congress' Commerce Clause authoritY, as it forced into commerce
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individuals who elected to refrain from that type of activity. Id. at 2591.

Sebelius did not address the government's authority to regJlate items, such as cameras,
disks, or computers, and the Court finds t~at it did not abrogate R4ich's determination that as
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long as Congress has a rational basis for concluding that an intrastate activity could substantially
affect interstate commerce, it may regulate the activity under the 60mmerce Clause. See Raich,
545 U.S. at 22. Numerous circuit decisions have found that the production of child pornography
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has a substantial effect on interstate co~rce, and that Congressihas the authority to prohibit its
purely local production and possession under the Commerce ClauSe. See, e.g., United States v.

Morales-de Jesus, 372 F.3d 6, 11 (1st Cir. :2004) (finding that stathte criminalizing the local
production of child pornography using materials transported in inierstate commerce was within
Congress' "substantial effect" Commerce Clause power); United States v. Forrest, 429 F.3d 73,

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78-79 (4th Cir. 2005) (holding that Congrciss had a rational basis for concluding that intrastate
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manufacture and possession of child pornqgraphy substantially affects interstate commerce);

United States v. Kallestad, 236 F.3d 225, 231 (5th Cir. 2000) (holding purely intrastate
possession of child pornography is not beyond Congress' power under the Commerce Clause);

United States v. Maxwell, 446 F.3d 1210, 1218 (l1th Cir. 2006) ("It is well within Congress's
authority to regulate directly the commerc~al activities constituting the interstate market for child
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pornography and prohibiting the intrastate: possession of... of an article of commerce as a
rational... means of regulating commerce in that product. ") (citation and internal quotation marks
omitted). The Court finds Petitioner's argument without merit.
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The Court further notes that Sectioo2251(a) reads, in pertinent part:
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Any person who employs, uses, persuades, ind-nces, entices, or
coerces any minor to engage in ... any sexually explicit conduct for
the purpose of producing any visual depiction of such conduct...
shall be punished as provided under subsection (tt) ... if that visual
depiction was produced ot transmitted using materials that have
been mailed, shipped, or transported in or affecting interstate or
foreign commerce by any means[.]
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18 U.S.C. §2251(a). Evidence was presented, and Petitioner agreed, that the camera
Petitioner used to take the images was manufactured outside of Mississippi and traveled
in interstate commerce. This is sufficient to satisfy the requiretbents of §2251 (a). See

Raich, 545 U.S. at 17 (holding "that whe~ 'a general regulatory statute bears a substantial
relation to commerce, the de minimis

ch~acter

of individual inStances arising under the

statute is of no consequence. III Id. at 17 (citation omitted). The fact that Petitioner created
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child pornography solely for his own per~onal use is irrelevant teD the constitutionality of
the statute. Petitioner's motion is therefore denied.

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Certificate of Appealability
An appeal cannot be taken from a fmal order adverse to Petitioner unless a certificate of
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appealability issues. 28 U .S.C. §2253(c)(1 )(B). Although Petitioner has not filed a notice of
appeal, this Court must "issue or deny a c~ficate of appealability when it enters a final order
adverse to the applicant." Rule 11 of the Rules Governing Section 2255 Proceedings for the
United States District Courts. A certificate of appealability will issue "only if the applicant has
made a substantial showing ofthe denial of a constitutional right.'~ 28 U.S.C. § 2253(c)(2). For
claims rejected on their merits, Petitioner may obtain a certificate of appealability by
demonstrating "that reasonable jurists would find the district court's assessment of the
constitutional claims debatable orwrong."Slackv. McDaniel, 529 U.S. 473, 484,120 S. Ct.
1595 (2000). As to claims rejected on proqedural grounds only, P¢titioner may obtain a
certificate of appealability by showing that "jurists ofreason woul'cl find it debatable whether the
petition states a valid claim of the denial of a constitutional right <md that jurists ofreason would
find it debatable whether the district court was correct in its procedural ruling." ld. The Court
finds that Petitioner cannot satisfy the Slack criteria, and a certificate of appealability will not
issue in this case.

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CQNCLUSION
Petitioner's motion for relief under 28 U.S.C. § 2255 is DENIED and this action is

DISMISSED WITH PREJUDICE. A certificate of appealabilit~ from this decision is
DENIED.
DATED this 12th Day of January, 2015.
BY THE COURT:

Dee Benson
United States District Judge

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