Brown v. United States of America

Filing 3

ORDER signed by Judge J.P. Stadtmueller on 7/10/2018: DENYING 1 Petitioner's Motion to Vacate, Set Aside or Correct Sentence Pursuant to Section 2255; DISMISSING CASE with prejudice; and DENYING Certificate of Appealability. (cc: all counsel, via mail to Terrill Brown at Oxford FCI)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TERRILL BROWN,
Petitioner,
v.

Case No. 18-CV-426-JPS
Crim. Case No. 15-CR-226-5-JPS

UNITED STATES OF AMERICA,

ORDER

Respondent.
Petitioner Terrill Brown (“Brown”) pleaded guilty to two counts of
bank robbery, in violation of 18 U.S.C. § 2113(a), (d) & 2, one count of Hobbs
Act robbery, in violation of 18 U.S.C. § 1951(a) & 2, and one count of
brandishing a firearm in connection with a crime of violence, in violation of
18 U.S.C. §§ 924(c)(1)(A)(ii) & 2. United States v. Terrill Brown, 15-CR-226-5JPS (E.D. Wis.) (Brown’s “Criminal Case”), (Docket #176). On September 6,
2017, the Court sentenced him to just under thirteen years’ imprisonment,
with seventy months being applied to the robbery convictions, and eightyfour months for the gun charge, to run consecutively to the robbery
sentences. Id. Brown did not appeal his convictions or sentence.
Brown filed a motion pursuant to 28 U.S.C. § 2255 to vacate his
Section 924(c) conviction on March 16, 2018. (Docket #1). That motion is
now before the Court for screening:
If it plainly appears from the motion, any attached
exhibits, and the record of the prior proceedings that the
moving party is not entitled to relief, the judge must dismiss
the motion and direct the clerk to notify the moving party. If
the motion is not dismissed, the judge must order the United
States Attorney to file an answer, motion, or other response

within a fixed time, or to take other action the judge may
order.
Rule 4(b), Rules Governing Section 2255 Proceedings. Generally, the Court
begins the screening process by examining the timeliness of the motion and
whether the claims therein are procedurally defaulted. The Court need not
address those matters, however, because Brown’s sole ground for relief is
plainly meritless.
Brown contends that he received ineffective assistance of counsel in
arriving at his plea agreement, in violation of his rights under the Sixth
Amendment. (Docket #1 at 4); Strickland v. Washington, 466 U.S. 668, 684–86
(1984). Brown argues that his counsel should not have advised him to plead
guilty to the Section 924(c) charge because, in Brown’s view, “application
of Section 924(c) to the Hobbs Act is illegal.” (Docket #2 at 5). A claim of
ineffective assistance requires proof of both deficient performance by
counsel and resulting prejudice to the defendant. Perrone v. United States,
889 F.3d 898, 908 (7th Cir. 2018). Brown is incorrect on the law concerning
the interaction between the Hobbs Act and Section 924(c), and so cannot
establish that his counsel performed deficiently.
Section 924(c) imposes additional penalties on individuals who carry
or use firearms in connection with certain crimes. 18 U.S.C. § 924(c). In
Brown’s case, he was convicted of brandishing a firearm during a “crime of
violence,” which the statute defines as
an offense that is a felony and—
(A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another, or

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(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
Id. § 924(c)(3). The first clause is referred to as the “force” or “elements”
clause, while the second is known as the “residual” clause.
Brown, citing a number of Supreme Court decisions on the
vagueness of criminal statutes and the modes for interpreting them,
believes that Hobbs Act robbery does not qualify as a “crime of violence”
under either clause. See (Docket #2 at 6–22). However, the Seventh Circuit
has expressly held that Hobbs Act robbery meets the definition via the force
clause. United States v. Anglin, 846 F.3d 854, 964–65 (7th Cir. 2017); United
States v. Rivera, 847 F.3d 847, 848 (7th Cir. 2017). Brown is aware of this.
(Docket #2 at 19) (“Petitioner is aware of the fact that the precedent of this
circuit is against petitioner because this circuit has held that Hobbs Act
[robbery] is a ‘crime of violence’ pursuant to 924(c)(3)(A).”). In essence,
Brown wants this Court to disagree with Anglin and Rivera. This Court has
no authority to do so. In any event, the Court of Appeals has also held that
Section 2113 bank robbery is also a “crime of violence,” so Brown’s Section
924(c) conviction would be valid even without the Hobbs Act robbery
charge. United States v. Williams, 864 F.3d 826, 830 (7th Cir. 2017).
Because Brown is plainly not entitled to relief on the sole ground
presented in his motion, the Court is compelled to deny the motion and
dismiss this action with prejudice. Under Rule 11(a) of the Rules Governing
Section 2255 Cases, “the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” To
obtain a certificate of appealability under 28 U.S.C. § 2253(c)(2), Brown
must make a “substantial showing of the denial of a constitutional right”

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by establishing 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.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal citations omitted). No reasonable jurists could debate
whether Brown’s motion presented a viable ground for relief. His
arguments have been directly rejected by the Seventh Circuit, and he knew
as much when he filed the motion. As a consequence, the Court is
compelled to deny a certificate of appealability as to Brown’s motion.
Finally, the Court closes with some information about the actions
that Brown may take if he wishes to challenge the Court’s resolution of this
case. This order and the judgment to follow are final. A dissatisfied party
may appeal this Court’s decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within 30 days of the entry
of judgment. See Fed. R. App. P. 3, 4. This Court may extend this deadline
if a party timely requests an extension and shows good cause or excusable
neglect for not being able to meet the 30-day deadline. See Fed. R. App. P.
4(a)(5)(A). Moreover, under certain circumstances, a party may ask this
Court to alter or amend its judgment under Federal Rule of Civil Procedure
59(e) or ask for relief from judgment under Federal Rule of Civil Procedure
60(b). Any motion under Federal Rule of Civil Procedure 59(e) must be filed
within 28 days of the entry of judgment. The Court cannot extend this
deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of Civil
Procedure 60(b) must be filed within a reasonable time, generally no more
than one year after the entry of the judgment. The court cannot extend this
deadline. See id. A party is expected to closely review all applicable rules
and determine what, if any, further action is appropriate in a case.
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Accordingly,
IT IS ORDERED that Petitioner’s motion to vacate, set aside, or
correct his sentence pursuant to Section 2255 (Docket #1) be and the same
is hereby DENIED;
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice; and
IT IS FURTHER ORDERED that a certificate of appealability be and
the same is hereby DENIED.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 10th day of July, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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