BRAIN v. USA

• Decision Date: 08 April 2011
• Docket Number: Nos. 4:03-cr-38 / 4:08-cv-71,s. 4:03-cr-38 / 4:08-cv-71
• Parties: ROBERT GLEN BRAIN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of Tennessee

ROBERT GLEN BRAIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

Nos. 4:03-cr-38 / 4:08-cv-71

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at WINCHESTER

Filed: April 8, 2011

Judge Edgar

MEMORANDUM

Federal prisoner Robert Glen Brain ("Brain") moves for post-conviction relief pursuant to 28 U.S.C. § 2255. [Court Doc. No. 49]. Petitioner Brain primarily claims that he was deprived of his right to effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. The government opposes the § 2255 motion.

After reviewing the record, the Court concludes that the motion is without merit. For the reasons expressed in this memorandum and for the reasons expressed by the government in its response [Court Doc. No. 54], the § 2255 motion will be DENIED. The record conclusively shows that Brain is not entitled to any relief under § 2255. There is no need for an evidentiary hearing.

I. Standard of Review Under 28 U.S.C. § 2255

28 U.S.C. § 2255(a) provides that a federal prisoner may make a motion to vacate, set aside, or correct his judgment of conviction or sentence on the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the federal district court lacked jurisdiction to impose the sentence, or that the sentence is in excess of the maximum authorized by

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federal law, or is otherwise subject to collateral attack. As a threshold standard to post-conviction relief under § 2255, a motion must allege: (1) an error of constitutional magnitude; (2) a sentence was imposed outside the federal statutory limits; or (2) an error of fact or law that was so fundamental as to render the entire criminal proceeding invalid. Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006); Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003); Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003); Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001).

Brain bears the burden of establishing an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings. Reed v. Farley, 512 U.S. 339, 353 (1994); Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005); Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003); Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999). To warrant relief under § 2255 based on an alleged non-constitutional error, Brain bears the burden of establishing that a fundamental defect in the criminal proceedings which necessarily resulted in a complete miscarriage of justice or an error so egregious that it amounts to a violation of due process. Hill v. United States, 368 U.S. 424, 428 (1962); Watson, 165 F.3d at 488; Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998); Gall v. United States, 21 F.3d 107, 109 (6th Cir. 1994); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990).

A § 2255 motion is not a substitute for a direct appeal and it cannot do service for an appeal. Bousley v. United States, 523 U.S. 614, 621 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982); United States v. Timmreck, 441 U.S. 780, 784 (1979); Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003); Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996); United States v.

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Walsh, 733 F.2d 31, 35 (6th Cir. 1984). Brain cannot utilize a § 2255 motion to relitigate the same issues that were presented and decided in his direct appeal in United States v. Brain, 226 Fed. Appx. 511 (6th Cir. 2007), cert. denied, 552 U.S. 907 (2007). Issues which are presented and decided on direct appeal may not be relitigated in a § 2255 proceeding absent exceptional circumstances, e.g. actual innocence or an intervening retroactive change in the law. Wright v. United States, 182 F.3d 458, 467 (6th Cir. 1999); Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999); Oliver v. United States, 90 F.3d 177, 180 (6th Cir. 1996); DuPont v. United States, 76 F.3d 108, 110-11 (6th Cir. 1996). Brain in his § 2255 motion has not made out a viable claim of actual innocence and there is no intervening retroactive change in the applicable law.

An evidentiary hearing is unnecessary if there are no genuine issues of material fact in dispute and the record conclusively shows that the petitioner is not entitled to relief under § 2255. An evidentiary hearing is not required if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or mere conclusions rather than statements of fact. Amr v. United States, 280 Fed. Appx. 480, 485 (6th Cir. 2008); Valentine v. United States, 488 F.3d 325, (6th Cir. 2007); Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999); Jones v. United States, 2010 WL 1882122, * 1 (E.D. Tenn. May 11, 2010).

Petitioner Brain bears the burden of articulating sufficient facts to state a viable claim for relief under § 2255. Vague, conclusory claims which are not substantiated by allegations of specific facts with some probability of verity are not enough to warrant an evidentiary hearing. A § 2255 motion may be dismissed if it only makes conclusory statements without substantiating allegations of specific facts and fails to state a claim cognizable under § 2255. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961); Jones, 2010 WL

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1882122, at * 2.

II. Facts

The Court finds that Brain has not met this burden of showing that he is entitled to any relief under 28 U.S.C. § 2255. Brain has not established an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings. He also has not established that there was a fundamental defect in the criminal proceedings which necessarily resulted in a complete miscarriage of justice or an error so egregious that it amounts to a violation of his constitutional right to due process of law.

The relevant facts are set forth in the Sixth Circuit's decision on Brain's direct appeal. Brain, 226 Fed. Appx. at 512-13. Brain was associated with the manufacture of methamphetamine over a period of at least eight months. On October 4, 2002, Brain was present when police officers searched the premises of James Holt and found a methamphetamine lab in operation. In his plea agreement, Brain admitted his involvement in that methamphetamine manufacturing operation.

On February 27, 2003, police officers executed a search warrant at Brain's residence, and seized numerous chemicals and other items used in the manufacture of methamphetamine. When police officers returned to Brain's residence on March 7, 2003, to execute an arrest warrant as a result of the evidence seized on February 27, an officer detected an odor associated with the operation of a methamphetamine lab inside Brain's house. Brain refused to consent to a search and the officers secured the premises to prevent the destruction of evidence until they could obtain a search warrant. When the officers executed the search warrant, they found evidence that a methamphetamine lab was being operated inside Brain's home. The officers seized quantities of hydrogen peroxide, liquid acetone, Red Devil lye, a gallon of Coleman fuel, glassware and syringes,

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a coffee pot and a blender containing white residue, and various other materials and chemicals used to manufacture methamphetamine. Also present inside the residence on March 7, 2003, was Brain's 17-year old son, Bobby, who commented to the officers that he (Bobby) knew it was only a matter of time before the police would catch them. Bobby further said that he had sold his speakers because he was afraid that officers conducting a search would seize the speakers.

A federal grand jury returned a seven-count indictment against Robert Glen Brain. Brain was charged in three counts with attempting to manufacture methamphetamine in violation of 21 U.S.C. § 846. He was charged in four counts with violating 21 U.S.C. § 843(a)(6) by knowingly and intentionally possessing equipment, chemicals, products, and materials used to manufacture methamphetamine having reasonable cause to believe that these items would be used to manufacture methamphetamine. Pursuant to a plea agreement Brain pleaded guilty on October 13, 2004, to Count One, attempting to manufacture methamphetamine in violation of 21 U.S.C. § 846.

The probation officer who prepared the presentence investigation report recommended that the base offense level of 20 be increased to 30 under U.S.S.G. § 2D1.1(b)(6)(C) (2004) which provides that if the offense involved the manufacture of methamphetamine and created a substantial risk of harm to the life of a minor, the base offense level should be increased by 6 levels to a minimum level of 30. During the sentencing phase, Brain contested the applicability of the enhancement for creating a substantial risk of harm to the life of a minor (Brain's 17-year old son) by manufacturing methamphetamine in his residence. After hearing testimony at the sentencing hearing, this District Court overruled Brain's objections to the presentence investigation report. This Court found that the comment by Brain's son, Bobby, established that Bobby was around and present at some point when Brain was manufacturing methamphetamine in his residence. This Court

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found that the existence of the chemicals and the presence of the child in the chemical fumes in and of itself posed a substantial danger and risk of harm to the child. It was very likely that the process of manufacturing methamphetamine occurred or took place in the child's presence. This Court imposed a sentence of imprisonment for a term of 130 months which was at the bottom of the applicable Guidelines range.

Brain took a direct appeal and raised the argument that he should not have received increase in his base...