USA v. Brandon

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
United States of America,
Plaintiff,
v.
Morris Lee Brandon, III,
Defendant.
File No. 23-cr-136 (ECT/ECW)
OPINION AND ORDER
Thomas M. Hollenhorst, United States Attorney’s Office, Minneapolis, MN, and Katharine
T. Buzicky, United States Attorney’s Office, St. Paul, MN, for Plaintiff United States of
America.
Morris Lee Brandon, III, pro se.
Defendant Morris Lee Brandon, III, pleaded guilty to conspiracy to distribute
methamphetamine on June 6, 2023. ECF No. 22 ¶ 1. He was sentenced to 144 months in
prison on February 23, 2024, ECF No. 55 at 2, and did not appeal the sentencing judgment,
see generally Fed. R. App. P. 4(b)(1)(A)(i). 	Acting pro se, Mr. Brandon has filed two
motions to vacate his sentence under 28 U.S.C. § 2255, arguing that he received ineffective
assistance of counsel, and that the Court abused its discretion by considering improper
material. 	ECF Nos. 60, 62. 	He contemporaneously filed a motion to extend the time to
file a § 2255 motion. ECF No. 59.
These motions will be denied. The second § 2255 motion, construed as a motion to
amend and treated as operative, is time-barred, and Mr. Brandon has not shown sufficient
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grounds to toll the statute of limitations. Even if this procedural barrier fell, his arguments
were waived in the plea agreement or lack merit. Lastly, though it appears likely that he
intended to file only once, his second § 2255 motion will be construed as an amended
petition.1
I
Mr. Brandon was indicted on April 20, 2023, on four counts of distribution of
methamphetamine and one count of conspiracy to distribute methamphetamine. ECF No.
12 (charging violations of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846). 	On June 6,
2023, advised by counsel, he entered a plea agreement in which he pleaded guilty to the
conspiracy charge, with the remaining counts to be dismissed at sentencing. ECF No. 22.
Between 	entering 	a 	guilty 	plea 	and 	receiving 	his 	sentence, 	Mr. 	Brandon
unsuccessfully challenged the proceedings. In November 2023, he filed a pro se motion to
fire his counsel, ECF No. 35, which was denied in January 2024, ECF No. 39. 	He then
filed a pro se notice of interlocutory appeal, seeking for the Eighth Circuit to reverse the
denial of his motion to fire counsel. ECF No. 43 (filed January 19, 2024); see ECF No. 49
(seeking to amend his notice of appeal). An Eighth Circuit panel dismissed the appeal for
lack of jurisdiction on January 31, 2024. 	ECF No. 48. 	Mr. Brandon did not seek to
withdraw his guilty plea, either before or during the sentencing hearing. He was sentenced
1 	On February 11, 2026, I entered an opinion and order denying Mr. Brandon’s
motions on the same grounds described here, with one exception. 	There, I erroneously
concluded that Mr. Brandon’s second-filed motion was barred by 28 U.S.C. § 2255(h).
Under Eighth Circuit precedent, it is not. See United States v. Sellner, 773 F.3d 927, 931
(8th Cir. 2014). The prior order and judgment will be vacated.
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to a 144-month term of imprisonment on February 23, 2024, on the conspiracy charge
alone; the distribution charges were dismissed. 	ECF No. 55 at 1. 	Mr. Brandon did not
appeal his conviction or sentence.
Mr. Brandon then sought to challenge his sentence under 28 U.S.C. § 2255. 	On
June 2, 2025, he filed a pro se motion to extend the time to file a § 2255 motion. 	ECF
No. 57. That motion was denied without prejudice to refiling alongside a § 2255 motion,
on the grounds that there was no subject-matter jurisdiction to consider an extension motion
in the absence of a pending § 2255 motion. 	ECF No. 58. 	On November 3, 2025, Mr.
Brandon filed a § 2255 motion, a motion to extend his filing deadline, and a supporting
memorandum of law. 	ECF Nos. 59–61. 	One week later he filed what was labeled and
docketed as another § 2255 motion, ECF No. 62, though it appears to be a handwritten
copy of his (typed) memorandum of law, ECF No. 61, with only minor changes.
II
Because the second § 2255 motion was filed before the first § 2255 motion was
decided, the second motion is not barred by the second-or-successive rule in § 2255(h).
See United States v. Sellner, 773 F.3d 927, 931 (8th Cir. 2014). It is instead construed as
a motion to amend. Id. The second motion will therefore be treated as operative, and the
first motion denied as moot. In the end, it makes no difference, because the two motions
are virtually identical, and the analysis would be the same either way.
In general, petitioners wishing to challenge their sentence under 28 U.S.C. § 2255
are subject to a one-year period of limitation, running from the latest of the following times:
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(1) the date on which the judgment of conviction becomes
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 governmental action;
(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; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
due diligence.
28 U.S.C. § 2255(f). The judgment of conviction becomes final when the “period for filing
a notice of appeal expire[s].” 	Anjulo-Lopez v. United States, 541 F.3d 814, 816 n.2 (8th
Cir. 2008). 	The notice of appeal must be filed within fourteen days of the entry of
judgment. Fed. R. App. P. 4(b)(1)(A). There is no pro se exception to the limitation period.
Johnson v. United States, 544 U.S. 295, 311 (2005).
Here, Mr. Brandon’s sentencing judgment was entered February 23, 2024. ECF No.
55. Fourteen days and one year later is March 8, 2025. Mr. Brandon’s first § 2255 motion,
filed in November 2025, falls outside the period of limitation.2 	The motion can be
considered, then, only if the limitation period is tolled.
2 	Because the second and first motion assert identical claims, the second motion
relates back to the original motion, so the date of the first motion matters for timeliness
analysis. 	See Dodd v. United States, 614 F.3d 512, 515 (8th Cir. 2010); Fed. R. Civ. P.
15(c).
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“Equitable tolling affords the otherwise time-barred petitioner an exceedingly
narrow window of relief.” 	English v. United States, 840 F.3d 957, 958 (8th Cir. 2016)
(citation modified). 	“The one-year statute of limitation may be equitably tolled ‘only if
the movant shows (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.” Odie v. United
States, 42 F.4th 940, 946 (8th Cir. 2022) (citation modified). 	“Due diligence does not
require repeated exercises in futility or exhaustion of every imaginable option, but it does
require ‘reasonable efforts.’” Id. (quoting Ingram v. United States, 932 F.3d 1084, 1090
(8th Cir. 2019)); see Anjulo-Lopez, 541 F.3d at 818 (“To be sure, section 2255 does not
require the maximum feasible diligence, only due, or reasonable diligence.” (citation
modified)). Equitable tolling may also be appropriate “if the government’s conduct ‘lulled’
the movant into inaction through reliance on that conduct.” 	United States v. Hernandez,
436 F.3d 851, 858 (8th Cir. 2006).
Mr. Brandon argues an extension is warranted because he has had limited law
library access while in Bureau of Prisons custody. ECF No. 59 at 1. That was so for three
reasons. First, he has been “in transit from one institution to another.” ECF No. 59 at 1.
Second, he “has been confined to special housing units which have no access to legal
material.” Id. And third, he was “[a]ssigned to FCI Forrest City where inmates are severely
limited to law library access because [they are] either confined to their cells due to
institutional lockdowns [or] staff shortages.” Id. at 1–2. I don’t understand him to allege
that during his entire time in custody he has not been able to access the law library, but
rather that transit, special housing units, lockdowns, and staff shortages make legal research
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periodically and temporarily unavailable, though for significant lengths of time. 	For
example, he alleges that there is a law library at FCI Forrest City, but it allows only
“severely limited” access. 	Id. at 1. 	His previous extension request described transit and
special housing units as “hinder[ing]” but not denying access. ECF No. 57 at 1. And his
citations to several U.S. Supreme Court cases and the U.S. Sentencing Guidelines show he
conducted legal research. See ECF No. 62 at 2, 5; ECF No. 61 at 3.
These grounds do not make up the extraordinary circumstances required to justify
equitable tolling. It is true that “inmates have a constitutional right of access to the courts
that requires the provision of some means for ensuring a reasonably adequate opportunity
to present claimed violations of fundamental constitutional rights to the courts.” 	Bear v.
Fayram, 650 F.3d 1120, 1122–23 (8th Cir. 2011) (citation modified). 	But prisons may
meet this requirement in different ways, including “prison libraries, jailhouse lawyers,
private lawyers on contract with the prison, or some combination of these and other
devices.” Id. (quoting Bear v. Kautzky, 305 F.3d 802, 806 (8th Cir. 2002)). When movants
do not explain how limited library access deprived them of the ability to bring § 2255
challenges, they fail to show the extraordinary circumstances required to equitably toll the
limitations period. 	See Odie, 42 F.4th at 947. 	Likewise, courts should not equitably toll
the § 2255(f) period when the movant failed to show “that his time spent in transit
constitutes extraordinary circumstances” justifying an extension. United States v. Iyamu,
18-cr-87(1) (ADM/KMM), 2021 WL 2156456, at *3 (D. Minn. May 27, 2021). 	Mr.
Brandon has not demonstrated that he used reasonable efforts to vindicate his rights—he
does not explain what steps he took to research possible avenues of relief, request
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assistance from the prison, or communicate to authorities about the external limitations on
research. See Anjulo-Lopez, 541 F.3d at 818–19 (declining to toll limitation period where
movant “neither explained why he was ‘unable to communicate with anyone’ about his
appeal while in transit, nor described any thwarted attempts to check on the status of his
appeal during that period”). 	Under these bare facts, the “exceedingly narrow window of
relief” is not open. English, 840 F.3d at 958.
III
Even if Mr. Brandon’s motion were timely, it would fail on the merits. 	Federal
prisoners may collaterally attack their convictions or sentences
upon the ground that the sentence was imposed in violation of
the Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.
28 U.S.C. § 2255(a); see Hill v. United States, 368 U.S. 424, 426–27 (1962). 	Here, Mr.
Brandon challenges his sentence in two ways. 	First, he argues that his counsel was
ineffective in failing to explain that his sentence could be increased because of conduct
relating to the dismissed counts of methamphetamine distribution. 	ECF No. 62 at 2–4.
According to him, counsel explained that those counts would be dismissed at sentencing,
but not that the Court could consider that material as relevant conduct and use it to increase
his sentence. Id. at 4. Relatedly, Mr. Brandon argues that the Court abused its discretion
“by increasing his sentence based on outdated sentences and relevant conduct.” Id. at 5.
It makes sense to start with the latter claim. Mr. Brandon waived this argument in
his plea agreement. 	There, he “waive[d] the right to petition the Court under 28 U.S.C.
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§ 2255 except based upon claims of ineffective assistance of counsel or any future
retroactive changes to the law.” 	ECF No. 22 ¶ 14. 	If it mattered, he also “waive[d] the
right to appeal any non-jurisdictional issues,” including “his sentence.” He did not waive
his right to appeal “the substantive reasonableness of a term of imprisonment above the
high end of the Guidelines range determined by the district court.” Id. The high end of the
Guidelines range was 293 months, well above his 144-month sentence. ECF No. 47 ¶ 90
(showing determination of Presentence Report, which was adopted at sentencing).
If the challenge weren’t waived, Mr. Brandon fails to show that his sentence was
imposed in violation of federal law. 	See 28 U.S.C. § 2255(a). 	Mr. Brandon argues that,
though the distribution charges were dismissed at sentencing, nevertheless “the court
increased [his] sentence based on relevant conduct” from those charges. ECF No. 62 at 5.
It is hard to make sense of this claim. 	For starters, sentencing courts may consider
uncharged or dismissed counts in deciding what sentence to impose. See United States v.
Jokhoo, 806 F.3d 1137, 1141 (8th Cir. 2015) (“Relevant conduct under the guidelines need
not be charged to be considered in sentencing, and it includes all acts and omissions that
were part of the same course of conduct or common scheme or plan as the offense of
conviction.” (citation modified)); United States v. Karam, 37 F.3d 1280, 1285 (8th Cir.
1994) (“[A] sentencing court may consider, as relevant conduct under U.S.S.G. § 1B1.3,
the conduct charged in dismissed counts.”). 	In this case, the facts undergirding the
conspiracy overlapped so thoroughly with the allegations in the dismissed charges that it
is hard to see how, as a matter of logic, considering those facts could be avoided. See ECF
No. 12 (indictment). The indictment alleged that Mr. Brandon “did unlawfully, knowingly
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and intentionally conspire with others . . . to distribute 50 grams or more of actual
methamphetamine,” from the period of July 2021 to March 2023, in the State and District
of Minnesota. Id. at 1. The dismissed charges alleged that he “did unlawfully, knowingly
and intentionally distribute 50 grams or more of actual methamphetamine” on February 1,
2023 (count 2), February 27, 2023 (counts 3 and 4), and March 13, 2023 (count 5), all in
the State and District of Minnesota. In the plea agreement, Mr. Brandon admitted that he
sent at least five packages of methamphetamine to members of the conspiracy in July 2021
and August 2021, and at least four more packages of methamphetamine from February
2023 to March 2023. 	ECF No. 22 ¶ 2. 	That conduct was plainly relevant to imposing a
sentence on the conspiracy charge. See 18 U.S.C. § 3553(a)(1) (instructing the sentencing
court to consider “the nature and circumstances of the offense,” among other factors).
Mr. Brandon claims support in Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Alleyne v. United States, 570 U.S. 99 (2013), but these cases don’t change the analysis.
See ECF No. 62 at 5. Apprendi holds that, “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.” 	530 U.S. at 490. 	That
principle “applies with equal force to facts increasing the mandatory minimum.” Alleyne,
570 U.S. at 112. 	These cases do not require jury trials on every factor relevant to
sentencing; instead, district courts may “exercise discretion” by “taking into consideration
various factors relating both to offense and offender” in “imposing a judgment within the
range prescribed by statute.” Apprendi, 530 U.S. at 481; see Alleyne, 570 U.S. at 116 (“We
have long recognized that broad sentencing discretion, informed by judicial factfinding,
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does not violate the Sixth Amendment.”). 	Apprendi and Alleyne do not support Mr.
Brandon’s argument that “the Court can no longer increase a defendant’s sentence based
on relevant conduct or preponderance of the evidence.” 	ECF No. 62 at 5. 	Here, the
sentence imposed—144 months—fell well below the Guidelines range of 235 to 293
months. ECF No. 47 ¶ 90. Mr. Brandon’s sentence exceeded the mandatory minimum of
120 months and was less than the maximum term of life. See 21 U.S.C. §§ 841(b)(1)(A),
846. Apprendi and Alleyne do not make Mr. Brandon’s punishment unlawful.
Mr. Brandon also argues that the Presentence Report overstated his criminal history
by including offenses from 2006, 2008, and 2009 that were “delayed”3 or for which he was
imprisoned not longer than “a year and a day.” ECF No. 61 at 3;4 see ECF No. 47 ¶¶ 41–
43 (showing offenses and assigning a total of six criminal history points from them);
U.S.S.G. § 4A1.1(a) (instructing courts to add three points for prior sentences “exceeding
one year and one month”). 	He states that these prior sentences were “objected to[], but
never heard.” ECF No. 61 at 3.
The record shows otherwise. Mr. Brandon filed two objections to the Presentence
Report, ECF Nos. 25, 42, but neither objection argues that his 2006, 2008, or 2009 offenses
should be excluded from the criminal history calculation. 	Courts “may, for good cause,
allow a party to make a new objection at any time before sentence is imposed.” 	Fed. R.
3 	Possibly “decayed”—this portion is handwritten, and some of the letters are hard to
make out.
4 	This argument does not appear in the amended motion. See ECF No. 62. However,
since it is not clear that Mr. Brandon intended to drop this argument, it will be analyzed
here.
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Crim. P. 32(i)(1)(D). 	At the sentencing hearing, Mr. Brandon raised a new objection
related to the 2006 sentence, which he claims was stayed, and for which he served only
three to four months, not the thirty-two months that appears in the Presentence Report. See
ECF No. 47 ¶ 41. 	Even if this untimely objection were sustained, the 2006 conviction
would count for two criminal history points, not three. See U.S.S.G. § 4A1.1(b) (“Add 2
points for each prior sentence of imprisonment of at least sixty days . . . .”). A one-point
reduction in criminal history score would not change his criminal history category. 	See
ECF No. 47 ¶ 47 (showing total criminal history score of fourteen); U.S.S.G. § 5 Pt. A
(setting criminal history category of VI for defendants with thirteen or more criminal
history points). 	He did not discuss the 2008 or 2009 convictions, though his lawyer
discussed non-specific cases in which his sentence served was shorter than the sentence
imposed. 	I addressed this concern at the hearing, stating that it was an objection to how
the Sentencing Guidelines work, and while those concerns were fair, I had to apply the
Guidelines as the law instructs me. So this untimely objection was heard and rejected, and
it does not show Mr. Brandon was sentenced in violation of federal law. 	See 28 U.S.C.
§ 2255(a).
To prevail on the ineffective-assistance claim, Mr. Brandon must establish that (1)
his counsel’s performance “fell below an objective standard of reasonableness,” and (2)
that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S.
668, 687–88 (1984). 	Mr. Brandon must show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. 	Though criminal defendants are entitled to competent representation, the
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Constitution “does not insure that defense counsel will recognize and raise every
conceivable” argument. 	Anderson v. United States, 393 F.3d 749, 754 (8th Cir. 2005)
(quoting Engle v. Isaac, 456 U.S. 107, 134 (1982)).
Mr. Brandon argues that his counsel was ineffective in failing to explain that his
sentence could be increased because of conduct relating to the dismissed counts of
methamphetamine distribution. ECF No. 62 at 2–4. According to him, counsel explained
that those counts would be dismissed at sentencing, but not that the Court could consider
that material as relevant conduct and use it to increase his sentence.5 Id. That failure, he
argues, rendered his plea “unintelligent” and prejudiced him. Id.
The ineffective-assistance claim fails for the same reason as before: the “relevant
conduct” from the dismissed charges substantially (or entirely) overlapped with the
conduct of the charged offense, to which Mr. Brandon pleaded guilty. 	Any relevant
conduct from the dismissed charges was already part of the charged offense. See ECF No.
22 ¶ 2 (factual basis of the plea agreement). Mr. Brandon has not identified any objectively
unreasonable performance by counsel. He has also failed to show prejudice, as he does not
even allege that he would have pleaded not guilty if his counsel explained the relevant
conduct. 	See Hill, 474 U.S. at 59 (“[I]n order to satisfy the ‘prejudice’ requirement, the
defendant must show that there is a reasonable probability that, but for counsel’s errors, he
5 	He also claims I “ruled that there were i[r]reconcilable difference[s] between” him
and his counsel, as shown in the sentencing transcript. ECF No. 62 at 4. Having reviewed
that transcript, as well as my earlier order denying his motion to fire counsel, I conclude
that is false; I did not say or write that in either matter. 	See ECF No. 39 at 9–10 (“[T]he
concerns Mr. Brandon described at the November 15 hearing and in his written submissions
do not show justifiable dissatisfaction.”).
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would not have pleaded guilty and would have insisted on going to trial.”); United States
v. Frausto, 754 F.3d 640, 644 (8th Cir. 2014) (“Frausto’s bare assertion that he would not
have pled guilty is insufficient to allow for an intelligent assessment of the likelihood that
Frausto would not have pled guilty and is far too speculative to warrant § 2255 relief.”).
As a final matter, “the motion and the files and records of the case conclusively
show that that prisoner is entitled to no relief,” 28 U.S.C. § 2255(b), so Mr. Brandon is not
entitled to an evidentiary hearing, Noe v. United States, 601 F.3d 784, 792 (8th Cir. 2010).
And Mr. Brandon has not “ma[d]e a substantial showing . . . that the issues are debatable
among reasonable jurists, a court could resolve the issues differently, or the issues deserve
further proceedings.” Flieger v. Delo, 16 F.3d 878, 882–83 (8th Cir. 1994). Therefore no
certificate of appealability shall issue. See id.
ORDER
Therefore, based on the foregoing, and on all the files, records, and proceedings
herein, IT IS ORDERED THAT:
1. 	The February 11, 2026 Opinion and Order [ECF No. 64] is VACATED.
2. 	The February 12, 2026 Judgment [ECF No. 65] is VACATED.
3. 	Defendant Morris Lee Brandon, III’s Motion for Extension of Time [ECF
No. 59] is DENIED.
4. 	Defendant’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody [ECF No. 60] is DENIED as moot.
5. 	Defendant’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to
28 U.S.C. § 2255 [ECF No. 62] is DENIED.
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6. 	No certificate of appealability shall issue.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: February 18, 2026 	s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court
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