USA v. Brown

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
UNITED STATES OF AMERICA PLAINTIFF
VS. CRIMINAL CASE NO. 01-CR-40019-001
CIVIL CASE NO. 04-CV-4030
BRIAN L. BROWN DEFENDANT
ORDER
Brian L. Brown moves for reconsideration of the Court’s July 13, 2006 Order, which adopted
the Report and Recommendations of the United States Magistrate Judge. (Doc. 220). Relying on
FED. R. CIV. P. 60(b)(5) and 60(b)(6), Brown argues that changes in United States Supreme Court
precedent render the Court’s previous decision erroneous. The Government has filed a response,
seeking to have Brown’s motion dismissed as an unauthorized successive petition for habeas corpus
relief. (Doc. 222). The Court finds the matter ripe for consideration.
I. BACKGROUND
Brown is currently serving concurrent terms of life in prison after a jury found him guilty of
kidnaping and aggravated sexual abuse of a child in violation of 18 U.S.C. § 1201(a)(1) and 18
U.S.C. § 2241(c). The United States Court of Appeals for the Eighth Circuit affirmed Brown’s
convictions on direct appeal. U.S. v. Brown, 330 F.3d 1073 (8th Cir. 2002).
Brown brought this lawsuit pursuant to 28 U.S.C. § 2255, seeking to vacate, set aside, or
correct his sentence. Pursuant to the provisions of 28 U.S.C. § 636(b), the case was referred to the
Honorable Bobby E. Shepherd, United States Magistrate Judge for the Western District of Arkansas,1
Judge Shepherd has since been appointed to the United States Court of Appeals for the1
Eight Circuit, where he currently sits.
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for the purpose of making a report and recommendations. This Court adopted the Magistrate Judge’s
Report and Recommendations, which found Brown’s claims for habeas corpus relief procedurally
barred and substantively without merit. (Docs. 187 and 193). Brown moved for a Certificate of
Appealability (“COA”), (Doc. 194), which was granted in his favor with respect to this Court’s (1)
denial of his ineffective assistance of counsel claim and (2) use of closed-circuit television system
for the trial testimony of the child victim. (Doc. 201). The United States Court of Appeals for the
Eighth Circuit affirmed the Court’s July 13, 2006 Order, (Doc. 215), and the United States Supreme
Court denied certiorari. (Doc. 219). Thereafter, Brown filed the instant motion for reconsideration.
II. DISCUSSION
Although Brown has styled his motion as one seeking reconsideration under Rule 60(b), the
Supreme Court has discussed at length that such motions may, under certain circumstances, be
consider successive habeas corpus petitions. See Gonzales v. Crosby, 545 U.S. 524 (2005). Because
successive habeas petitions require a COA from the court of appeals, see 28 U.S.C. § 2244(b)(3),
and Brown has not sought a COA, the instant motion must be dismissed if it is in substance a
successive habeas petition. As this question is jurisdictional in nature, the Court begins its analysis
by determining the proper characterization of the instant pleading.
In Crosby, the Supreme Court explained the distinction between permissible Rule 60 motions
and impermissible successive habeas petitions in terms of whether the motion advanced a “claim”:
In most cases, determining whether a Rule 60(b) motion advances one or more
“claims” will be relatively simple. A motion that seeks to add a new ground for relief
will of course qualify. A motion can also be said to bring a “claim” if it attacks the
federal court’s previous resolution of a claim on the merits, since alleging that the
court erred in denying habeas relief on the merits is effectively indistinguishable from
alleging that the movant is, under the substantive provisions of the statutes, entitled
to habeas relief.
545 U.S. at 532 (citations and footnotes omitted). The Supreme Court also warned that “a Rule
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60(b) motion based on a purported change in the substantive law governing the claim could be used
to circumvent § 2244(b)(2)(A)’s dictate that the only new law on which a successive petition may
rely is ‘a new rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.’” 545 U.S. at 531-32.
On its face, Brown’s Rule 60(b) motion seeks to have the Court reconsider the merits of his
habeas petition in light of supposed changes in Supreme Court case law. See Doc. 220 (“Motion for
Merit Reconsideration”). Thus, under Crosby, Brown’s motion for reconsideration is in substance
a successive habeas petition and Brown must obtain a COA before proceeding.
III. CONCLUSION
Upon consideration, Brown’s Motion to Reconsider the Court’s Order Adopting the Report
and Recommendation of the United States Magistrate Judge should be and hereby is DENIED, and
the Government’s Motion to Dismiss should be and hereby is GRANTED. Brown’s two Motions2
for Extensions of Time, (Doc. 218 and Doc. 229), Motion for Leave to File Brief re the Teague
Doctrine, (Doc. 223), Motion for Emergency Leave, (Doc. 225), and Motion for Judgment in
Pending Issues, (Doc. 228), are DENIED as moot.
IT IS SO ORDERED, this 3rd day of December, 2010.
/s/Harry F. Barnes
Hon. Harry F. Barnes
United States District Judge
The Government’s Motion to Dismiss pertains only to Brown’s Motion to Reconsider,2
which is in substance a new habeas petition.
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