Brothers v. United States
| Decision Date | 30 September 2016 |
| Docket Number | NO. 3:16-cv-00070,3:16-cv-00070 |
| Parties | RUSSELL BROTHERS, JR. Movant, v. UNITED STATES OF AMERICA Respondent. |
| Court | U.S. District Court — Middle District of Tennessee |
MEMORANDUM
Movant, Russell Brothers, Jr., proceeding pro se, has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (Doc. No. 1.) The United States has filed a response in opposition to the motion (Doc. No. 19), and Movant has filed a reply. (Doc. No. 33.)
Movant was previously convicted of a drug trafficking felony in Florida in 1988, and of multiple federal drug trafficking and money laundering felonies in this Court in 1993. United States of America v. Russell Brothers, Jr., No. 3:13-cr-00049 (M.D. Tenn. Oct. 6, 2014) (). (Doc. No. 33.) On March 6, 2013, Movant was indicted on three counts of being a felon in possession of various firearms on three separate dates in April 2012, in violation of 18 U.S.C. §§ 922(g) and 924, and two counts of obstructing justice by interfering with the investigation of his crimes, in violation of 18 U.S.C. § 1512(b)(1). Indictment, Brothers, No. 3:13-cr-00049 (M.D. Tenn. Mar. 6, 2013). (Doc. No. 2.)
Movant faced a statutory maximum possible sentence of 10 years in prison and 3 years of supervised release on each felon-in-possession count, and 20 years in prison and 3 years supervised release on each obstruction count. Brothers, No. 3:13-cr-00049 (M.D. Tenn. Oct. 6, 2014) (). (Doc. No. 33.) The Court accepted an agreed petition to plead guilty on October 6, 2014. Id. With respect to the United States Sentencing Guidelines range, the parties agreed that Movant's offense level was 25, and that he fell into Criminal History Category II or III, for a guidelines range of 63 to 87 months. Id. at PageID ##89, 102. The Presentence Investigation Report prepared by the Probation Office indicated that Movant's offense level was 23, and that he fell into Criminal History Category II, with a resulting Guideline range of 51 to 63 months. (Doc. No. 21, at 10, 22). Pursuant to the parties' plea agreement, however, Movant was sentenced to only 15 months in prison. Brothers, No. 3:13-cr-00049 (M.D. Tenn. Jan. 21, 2015) (judgment, at PageID #115). (Doc. No. 37.) Judgment entered on January 21, 2015. Id.
Movant alleges that he is actually innocent of the offense of being a felon in possession of a firearm, because his civil rights had been restored after his previous convictions. He alleges that the prosecutor was guilty of misconduct for prosecuting Movant on a charge that was unfounded in light of Movant's restoration of rights. He further alleges that his trial counsel was ineffective for failing to contest the faulty indictment, for advising Movant to plead guilty, for failing to contest the sentence, and for failing to perfect a direct appeal based on his legal innocence due to the restoration of his rights.
To be entitled to relief, a prisoner who moves to vacate his sentence under § 2255 must show 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). To prevail on a § 2255 motion, a movant "must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict." Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Non-constitutional errors are generally outside the scope of § 2255 relief. United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A movant can prevail on a § 2255 motion alleging non-constitutional error only by establishing a "fundamental defect which inherently results in a complete miscarriage of justice, or an error so egregious that it amounts to a violation of due process." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) ().
A prisoner who files a motion under § 2255 challenging a federal conviction is entitled to "a prompt hearing" at which the district court is to "determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255(b). The hearing is mandatory "unless 'the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" Fontaine v. United States, 411 U.S. 213, 215 (1973) (quoting 28 U.S.C. § 2255(b)). Thus, "no hearing is required if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)).
Rule 4(b) of the Rules Governing § 2255 Proceedings provides that if it plainly appears from the face of the § 2255 motion, exhibits, and prior proceedings that the petitioner is not entitled to relief, the judge shall make an order for its summary dismissal. Upon consideration of theoriginal motion and supporting memorandum, the government's response and the underlying factual record, the Court finds that there are no evidentiary issues to be resolved in this case and that an evidentiary hearing is not required. The Court will dispose of the motion as the law and justice require. Rule 8(a), Rules Gov'g § 2255 Cases.
To establish ineffective assistance of counsel, a movant must show both that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To state a claim for prosecutorial misconduct in bringing particular charges, a movant must show that "the government had undertaken obviously groundless positions in a prosecution or positions intended solely to harass defendants rather than to vindicate the rule of law." U.S. v. Skeddle, 45 F. App'x 443, 446 (6th Cir. 2002). Movant claims in essence that his counsel was ineffective for advising him to plead guilty to a crime of which he was innocent, and that the prosecutor committed misconduct by prosecuting him for a crime of which he was innocent, as a matter of law. Accordingly, Movant is able to prevail on either of these claims only if he succeeds in establishing that the prior restoration of his rights makes him actually innocent of the crime of being a felon in possession of a weapon. That question is "primarily a question of law," see McSwain v. Davis, 287 F. App'x 450, 459 (6th Cir. 2008) (), and is the focus of the Court's inquiry.
18 U.S.C. § 922(g) provides in pertinent part that it is unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year to possess any firearm or ammunition. However, 18 U.S.C. § 921(a)(20) provides an exception tothat prohibition in the case of a conviction for which a person has "had civil rights restored . . . unless such . . . restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." The Sixth Circuit has held that the "civil rights" that must be restored in order for this exception to apply are "the rights to vote, to serve on a jury and to seek and hold public office." Walker v. U.S., 800 F.3d 720, 723 (6th Cir. 2015) (quoting United States v. Cassidy, 889 F.2d 543, 550 (6th Cir. 1990)), cert. denied, 136 S. Ct. 2387 (2016). Movant does not dispute that the prohibition of § 922(g) was triggered by his previous convictions. His position is that he falls into the exception provided by § 921(a)(20) and is therefore innocent of the crime of being a felon in possession, as a matter of law.
On June 29, 2007, after Movant's release from federal prison on his 1993 convictions, a senior U.S. probation officer for this district signed a "Certificate of Restoration" form certifying that Movant's maximum sentence for his federal convictions in case numbers 3:92-00102 and 3:93-00079 had expired and that the Court had not ordered any restitution. (Doc. No. 10, at 8.) Movant has submitted proof that, relying upon his Certificate of Restoration, state officials have permitted him to register and vote in at least eight elections since 2007. (Doc. No. 10, at 12-14.)
The form upon which Movant relies is published by the Tennessee Secretary of State as SS-3041 (Rev. 6/06), Elections Division RDA S836-1. (Doc. No. 10, at 8.) Just under the heading of the document, the form provides that "To be eligible for voter registration, the person must be current in all child support obligations, if any," and at the bottom it states "see reverse for instructions." (Id.) Movant has not filed the entire form, but the Court takes judicial notice that the reverse side of the form, attached hereto as Appendix 1, consists of instructions to the agent completing the form and to "the Applicant Seeking to have His or Her Voting Rights Restored." (App. 1.) See U.S. ex rel. Modglin v. DJO Global, Inc., 48 F.Supp.3d 1362, 1381 (C.D. Cal. 2014)(Fed. R. Evid. 201 allows courts to take judicial notice of "'government documents available from reliable sources on the Internet,' such as websites run by governmental agencies"). The Court further takes judicial notice that the state's current version of...
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