USA v. Brown

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
UNITED STATES OF AMERICA 	RESPONDENT
vs. 	Criminal No. 4:01-cr-40019
Civil No. 4:11-cv-04028
Civil No. 4:16-cv-04081
BRIAN BROWN 	MOVANT
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Movant is Brian Brown (“Brown”). 	On November 14, 2023, Brown filed a Motion for
Reconsideration1 (ECF No. 311) of this Court’s Order denying his 28 U.S.C. § 2255 Motion. The
28 U.S.C. § 2255 Motion was denied because it was deemed to be a “successive motion.” ECF No.
292. With the current Motion, Brown seeks reconsideration of that denial because, as he claims, he
is entitled to relief under a new Eighth Circuit precedent. ECF No. 311.
Because Brown has not complied with prior court orders and has not sought leave prior to
filing this Motion, this Motion should be DENIED. In prior orders, Brown has been admonished
as follows: “Brown must first seek and obtain leave of this Court or permission from the Court
of Appeals before filing any additional pleadings with the Court involving this matter.” ECF
No. 292.
Furthermore, under 28 U.S.C. § 2255(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—(2) a new rule
of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.” Section 28 U.S.C. § 2244(b)(3)(A) also provides that “[b]efore a second
or successive application permitted by this section is filed in the district court, the applicant shall
1 The instant pleading is styled “Motion for Judgment” but is in fact a request for this Court to reconsider its
prior order.
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move in the appropriate court of appeals for an order authorizing the district court to consider this
application.” (emphasis added).
Based upon these rules, the Court finds Brown was required to seek leave with the U.S.
Court of Appeals for the Eighth Circuit prior to filing his second or successive 28 U.S.C. § 2255
Motion. 	Because he has not complied this this provision, the Court finds his Motion for
Reconsideration (ECF No. 311) should be DENIED. Brown must seek leave with the U.S. Court
of Appeals for the Eighth Circuit before filing any second or successive 28 U.S.C. § 2255
Motion.
Accordingly, the Court recommends the instant Motion be DENIED. 	The Court further
recommends the Clerk of this Court be directed to accept no further pleadings from Brown unless
Brown has first obtained permission from the United States Court of Appeals for the Eighth Circuit
for such filing.
The Parties have fourteen (14) days from receipt of this 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. See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).
DATED this 28th day of November 2023.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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