USA v. Brown

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
UNITED STATES OF AMERICA RESPONDENT
v. Crim. No. 4:01-CR-40019
Civil No. 4:11-CV-4028
BRIAN BROWN MOVANT
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Before the Court is the Motion to Correct an Illegal Sentence filed herein by BRIAN BROWN,
(hereinafter referred to as “Movant”) an inmate currently confined in the Federal Bureau of Prisons.
ECF No. 253. The United States of America (“Respondent”) filed its Motion to Strike Successive1
2255 Motion on the same day. ECF No. 254. These Motions were referred for findings of fact,
conclusions of law and recommendations for the disposition of the case.
A. Factual and Procedural Background
Movant was indicted on November 29, 2001 and charged with violation of 18 U.S.C. §
1201(a)(1) and 2241(c) for kidnaping and aggravated sexual assault of a child. Following his
conviction by a jury, Movant was sentenced on June 24, 2002, to two concurrent life sentences. ECF
No. 80. Thereafter, on February 23, 2004, Movant sought to set aside his sentence in his first motion2
pursuant 28 U.S.C. § 2255. ECF No. 106. On March 14, 2006, following appointment of counsel,
an evidentiary hearing, and post hearing briefing, U.S. Magistrate Judge Bobby Shepherd entered his
References to documents filed with the Court are referred to by docket number and referenced	1
“ECF No. ___.”
A full factual and procedural background of the original criminal proceeding and direct appeal is	2
summarized in the Report and Recommendation, recommending denial of Movant’s first Motion pursuant
to §2255, entered by United States Magistrate Judge Bobby E. Shepherd on March 14, 2006. ECF No.
187. This summary will not be repeated in this Order.
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Report and Recommendation, recommending the first motion filed by Movant pursuant to § 2255 be
denied. ECF No. 187. U.S. District Judge Harry F. Barnes adopted the Report and Recommendation
and denied the motion on July 13, 2006. ECF No. 193. Movant appealed this Order, and the United
States Court of Appeal for the Eighth Circuit affirmed the Order denying his request for relief. ECF
No. 215. Since that time, Movant has filed numerous motions seeking various types of post-conviction
relief.
Movant filed the instant Motion on March 22, 2011. He styles his pleading “Motion to Correct
an Illegal Sentence that Violates Ex Post Facto Clause Fed. R. Crim Proc. Rule 35 (2001).” ECF No.
253. Following the Court docketing the Motion as a Motion to Correct Sentence pursuant to §2255,
Movant filed an objection to the Clerk docketing this Motion as a request for relief pursuant to § 2255,
claiming instead it was a proper Petition for Habeas Corpus Relief pursuant to 28 U.S.C. § 2241. ECF
No. 255. A review of his pleading, however, reveals Movant complains of “false information,
tampered witnesses, altered documents, perjured evidence and non-impartial justices, to advance a
cause of other than this Court’s Justice” and requests that the Court “vacate sentence and correctly
sentence” Movant. ECF No. 253. All of Movant’s complaints in this new Motion amount to an attack
on his sentence in one form or another. He states quite clearly that the “Sentence is Illegal” and
questions the sentencing Court’s application of the United States Sentencing Guidelines. ECF No. 253
p. 4. He requests the Court vacate his sentence. The Clerk of this Court properly docketed this matter
as a Motion to Correct Sentence pursuant to § 2255. Respondent has replied and asserts the matter
should be dismissed as a successive petition. ECF No. 254.
B. Discussion
1. Section 2255 Motion Generally:
As a preliminary matter, it should be noted that a motion pursuant to 28 U.S. C. § 2255 is
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fundamentally different from a direct appeal. The Court will not reconsider an issue, which was
decided on direct appeal, in a motion to vacate pursuant to § 2255. See United States v. Davis, 406
F.3d 505, 511 (8 Cir. 2005). Section § 2255 provides that a prisoner “in custody under sentence”th
of a federal court may file a motion in the "court which imposed the sentence to vacate, set aside or
correct the sentence." The statute states four grounds upon which such relief may be claimed:
(1) "that the sentence was imposed in violation of the Constitution or laws of the
United States,"
(2) "that the court was without jurisdiction to impose such sentence;"
(3) "that the sentence was in excess of the maximum authorized by law;" and
(4) that the sentence "is otherwise subject to collateral attack."
Further, § 2255 requires any second or successive petition be certified by the appropriate
Federal Court of Appeals prior to filing in the district court. Section 2255(h) provides:
(h) A second or successive motion must be certified as provided in section 2244 by a
panel of the appropriate court of appeals to contain--
(1) newly discovered evidence that, if proven and viewed in light of the evidence as
a whole, would be sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable.
2. Instant Motion:
Movant here seeks to relitigate various claims related to his sentence in the underlying criminal
case. His claims include “false information, tampered witnesses, altered documents, perjured
evidence and non-impartial justices, to advance a cause of other than this Court’s Justice.” ECF No.
253 p. 3. He clearly seeks to attack his original sentence in the underlying criminal case. The
Respondent asserts the substantive claims made by Movant have either been previously decided by the
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Court, have been waived by failure to raise the claim in a previous proceeding, or are time barred. The
Respondent does not address the substantive claims in the pending Motion, but rather seeks to strike
the Motion as a successive petition pursuant to 28 U.S.C. § 2255(h). ECF No. 254.
This is the at least second motion the Movant has filed attacking his sentence. As noted above,
the first motion filed was denied by this Court on July 13, 2006, and this denial was affirmed by the
Court of Appeals.
The Eighth Circuit has held that a petitioner may not circumvent § 2255 procedural
requirements by bringing successive § 2255 actions under other names. See United States v. Patton,
309 F.3d 1093, 1094 (8th Cir.2002). The instant Motion is clearly an attack on the sentence imposed
in the underlying criminal case, and thus, constitutes a § 2255 motion. Further, the Movant’s current
§ 2255 motion constitutes a “second or successive motion” within the meaning of 28 U.S.C. § 2255(h).
A petitioner seeking to file a second or successive § 2255 motion challenging a conviction or sentence
must first obtain Circuit Court certification. 28 U.S.C. § 2255(h). Accordingly, the Movant must first
obtain authorization from the appropriate court of appeals. In this case, the United States Court of
Appeals for the Eighth Circuit is the appropriate court of appeals. See Vancleave v. Norris, 150 F.3d
926, 927 (8th Cir. 1998)(these restrictions are not an unconstitutional suspension of the writ of habeas
corpus); Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996)(only the court of appeals may
authorize commencement of a second or successive petition); Wainwright v. Norris, 958 F.Supp. 426,
431 (E.D.Ark. 1996)(citing Nunez). “[F]ederal prisoners may not file ‘second or successive’ § 2255
motions without an appropriate certification from the circuit court. The rule is absolute. Prisoners may
not evade the statutory requirement by simply filing a second or successive § 2255 motion in the
district court.” Boykin v. United States, 242 F.3d 373 (8 Cir. 2000). Absent a certification from theth
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appropriate court of appeals, a district court lacks “the power and authority” to entertain a successive
motion filed pursuant to § 2255. Id. Because the Movant failed to obtain certification from the Eighth
Circuit Court of Appeals, this Court lacks jurisdiction and the instant Motion should be denied.
Recommendation:
Accordingly, based on the foregoing, it is recommended the Motion to Correct an Illegal
Sentence (ECF No. 253) be DENIED. It is also recommend that Respondent’s Motion to Strike3
Successive 2255 Motion (ECF No. 254) be GRANTED. Further, pursuant to 28 U.S.C. §1915(a), I
recommend the finding that an appeal from the denial of Movant’s Motion would not be taken in good
faith.
The parties have fourteen (14) days from receipt of our report and recommendation in
which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 8 day of June, 2011.	th
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
"A federal court may dismiss a claim without an evidentiary hearing where the allegations are	3
frivolous, where the allegations fail to state a constitutional claim, where the relevant facts are not in
dispute, or where the dispute can be resolved on the basis of the record." Urquhart v. Lockhart, 726 F.2d
1316, 1318-19 (8th Cir.1984).
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