United States v. Brown

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10425

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BRIAN MATTHEW BROWN, also known as Downtown,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CV-951
USDC No. 4:16-CR-132-2

Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:
*

Brian Matthew Brown, federal prisoner # 54032-177, pleaded guilty to
conspiracy to possess with intent to distribute a controlled substance in
violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B). The district court
sentenced Brown to 293 months of imprisonment followed by four years of
supervised release. Brown moves for a certificate of appealability (COA) to
challenge the district court’s denial of his 28 U.S.C. § 2255 motion.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
April 10, 2020

Lyle W. Cayce
Clerk
Case: 19-10425 Document: 00515378453 Page: 1 Date Filed: 04/10/2020

No. 19-10425
2
Brown claims that his guilty plea was not knowingly, intelligently, and
voluntarily entered as a result of ineffective assistance of counsel. According
to Brown, his attorney told him that if he pleaded guilty, he would receive a
15-year sentence. He states that but for counsel’s incorrect prediction of a 15-
year sentence, he would not have pleaded guilty and would have insisted on
going to trial.
To obtain a COA, Brown must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, claims are
rejected on the merits, the prisoner must “demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims
debatable or wrong” or that the issues presented “deserve encouragement to
proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Brown has
failed to make the showing necessary to obtain a COA, and a COA is denied.
With respect to Brown’s challenge to the district court’s denial of his
§ 2255 motion without an evidentiary hearing, a COA is not required to appeal
the denial of an evidentiary hearing in a federal § 2255 proceeding.
See Norman v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016). We therefore
construe his motion for a COA on this issue as a direct appeal of the district
court’s denial of an evidentiary hearing.
This court reviews a district court’s refusal to grant an evidentiary
hearing on a § 2255 motion for abuse of discretion. United States v. Cavitt, 550
F.3d 430, 435 (5th Cir. 2008). To show an abuse of discretion, Brown must
come forward with “independent indicia of the likely merit of [his] allegations.”
Id. at 442 (internal quotation marks and citation omitted). Brown has not
shown, for the reasons discussed above, that he had a meritorious claim for
relief under § 2255. Accordingly, the district court’s denial of Brown’s § 2255
Case: 19-10425 Document: 00515378453 Page: 2 Date Filed: 04/10/2020

No. 19-10425
3
motion without an evidentiary hearing is affirmed. See Norman, 817 F.3d at
234.
COA DENIED; AFFIRMED.
Case: 19-10425 Document: 00515378453 Page: 3 Date Filed: 04/10/2020