United States v. Brown

• Decision Date: 10 June 2021
• Docket Number: Criminal No. 3:11CR57
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES OF AMERICA v. LOUIS A. BROWN, Petitioner.

UNITED STATES OF AMERICA v. LOUIS A. BROWN, Petitioner.

Criminal No. 3:11CR57

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

June 10, 2021

MEMORANDUM OPINION

Louis A. Brown, a federal inmate, proceeding with counsel, filed DEFENDANT'S MOTION TO VACATE THE SENTENCE. ("§ 2255 Motion," ECF No. 135.) The Government has responded and moves to dismiss on the ground that, inter alia, the § 2255 Motion is barred by the relevant statute of limitations.¹ For the reasons set forth below, the § 2255 Motion will be denied as barred by the statute of limitations.

I. THE STATUTE OF LIMITATIONS

Section 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") amended 28 U.S.C. § 2255 to establish a one-year period of limitation for the filing of a § 2255 Motion. Specifically, 28 U.S.C. § 2255(f) now reads:

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of—

(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).

Brown's judgment of conviction on his resentencing became final on December 29, 2016, the last date to file an appeal. See United States v. Clayton, No. 3:07cr488, 2010 WL 4735762, at *3 (E.D. Va. Nov. 15, 2010) (citing Arnette v. United States, Nos. 4:01CR16, 4:04CV122, 2005 WL 1026711, at *4 (E.D. Va. May 2, 2005)). Therefore, Brown had until Friday, December 29, 2017, to file a timely 28 U.S.C. § 2255 motion.

Brown's § 2255 Motion filed on January 29, 2021 is clearly filed beyond the one-year limitation period. Brown contends that the § 2255 Motion is timely because his MOTION TO REDUCE BASE OFFENSE LEVEL PURSUANT TO §3582(c)(2) ("§ 3582(c)(2) Motion," ECF No. 102) filed on December 12, 2017 should be recharacterized as28 U.S.C. § 2255 motion seeking relief on the ground that counsel was ineffective for failing to challenge Brown's designation as a career offender. Brown, however, never sought relief on that basis until March 30, 2018, when the Federal Public Defender acknowledged that Brown was not entitled to relief under 18 U.S.C. § 3582(c)(2) and constructed the 28 U.S.C. § 2255 claim for relief that Brown now raises. For the reasons set forth below, the Court declines to recharacterize Brown's § 3582(c)(2) Motion as a motion under 28 U.S.C. § 2255 seeking relief on counsel's failure to challenge Brown's designation of a career offender at resentencing.

II. PROCEDURAL HISTORY

A. Original Conviction And Resentencing

On February 24, 2011, a grand jury charged Brown with four counts of distribution of cocaine base and one count of possession with intent to distribute cocaine base. (Indictment 1-4, ECF No. 1.) On June 27, 2011, Brown entered into a Plea Agreement and pled guilty to Count One, which charged him with distribution of cocaine base. (Plea Agreement ¶ 1, ECF No. 12.) During the sentencing hearing on November 10, 2011, counsel for Brown agreed that he was a career offender. (Nov. 10, 2011 Tr. 4, ECF No. 36.) Counsel objected to the obstruction of justice enhancement and to the denial of a reduction for acceptance of responsibility, and presented testimony, including testimony from Brown himself, tosupport the objections. (Nov. 10, 2011 Tr. 4-19, 35-44, 51-53, 60-65.) The Court overruled the objections. (Nov. 10, 2011 Tr. 58, 65.) On November 16, 2011, the Court entered judgment against Brown and sentenced him to 240 months of imprisonment. (J. 2, ECF No. 29.) On direct appeal, the United States Court of Appeals for the Fourth Circuit affirmed this Court's judgment. United States v. Brown, 474 F. App'x 244, 244-45 (4th Cir. 2012).

On June 23, 2013, Brown, proceeding pro se filed a 28 U.S.C. § 2255 Motion. (ECF No. 40.) Following an evidentiary hearing, the Court granted Brown relief with respect to his claim that: "Trial counsel rendered ineffective assistance of counsel by providing Brown with copies of the FBI 302s and failing to advise him that he could be charged with obstruction of justice if he mailed copies of those to his mother" and set the matter for a resentencing. (ECF No. 89, at 6, 18-23.) At the resentencing, Brown again was found to be a career offender. Following the resentencing, on December 15, 2016, the Court entered the Judgment in a Criminal Case and sentenced Brown to 188 months of imprisonment. (ECF No. 100, at 2.) Brown did not appeal.

B. Proceedings Following Resentencing

1. The § 3582(c)(2) Motion

Just less than a year later, on December 12, 2017, Brown, proceeding pro se, filed his § 3582(c)(2) Motion. The § 3582 Motion is three single-spaced typed pages in length, consisting ofnine paragraphs. At one point in his § 3582(c)(2) Motion, Brown states: "The drug amount is from the PSR, though the defendant objected to his counsel regarding the amount. This was in fact one of the ways counsel was ineffective." (ECF No. 102, at 2.) Then, on the next page, Brown indicates one of his offenses no longer qualifies as a valid predicate to qualify him as a career offender. (Id. at 3.) By Order entered on January 3, 2018, the Court appointed the Federal Public Defender to represent Brown on his § 3582(c)(2) Motion and set a briefing schedule.

2. The Federal Public Defender's March 30, 2018 Request For Recharacterization Of The § 3582(c)(2) Motion As One For Relief Under 28 U.S.C. § 2255

On March 30, 2018, the Federal Public Defender filed his response to the January 3, 2018 Order ("March 30, 2018 Response," ECF No. 107). In his March 30, 2018 Response, the Federal Public Defender acknowledged that Brown was not entitled to relief under 18 U.S.C. § 3582(c)(2). (ECF No. 107, at 1 n.2.) Instead, the Federal Public Defender requested that the Court construe Brown's § 3582(c)(2) Motion as a motion for relief under 28 U.S.C. § 2255. (Id. at 5.) The Federal Public Defender further suggested that the Court should take the sentence pertaining to counsel and sentence pertaining to Brown's career offender status in the § 3582(c)(2) Motion and construct the claim that counsel wasineffective for failing to challenge Brown's designation as a career offender at resentencing.² (Id. at 7.)

By Order entered on April 12, 2018, the Court noted that the Federal Public Defender had not been appointed to represent Brown on a request for relief under 28 U.S.C. § 2255 and denied without prejudice the request to vacate sentence pursuant to 28 U.S.C. § 2255. (ECF No. 108, at 2.) By Order entered on June 15, 2018, the Court denied Brown's § 3582(c)(2) Motion. (ECF No. 115.) Brown appealed.

The United States Court of Appeals for the Fourth Circuit remanded the matter to this Court and stated, in pertinent part:

There was nothing unusual about counsel's request that the court treat Brown's pro se filing as a § 2255 petition. Federal courts are obliged to liberally construe filings by pro se litigants. Haines v. Kerner, 404 U.S. 519, 520 (1972). That duty extends to recharacterizing a filing to which a pro se litigant has attached the wrong label, allowing courts to "avoid an unnecessary dismissal, to avoid inappropriately stringent application of formal labeling requirements, or to create a better correspondence between thesubstance of a pro se motion's claim and its underlying legal basis." Castro v. United States, 540 U.S. 375, 381-82 (2003) (internal citations omitted). And courts frequently confront precisely the question at issue here - whether a pro se litigant has mistakenly sought what actually is § 2255 relief under the rubric of § 3582(c)(2) - and determine the true nature of such filings by looking to the document's substance, not its caption. See,e.g., United States v. Bailey, 777 F.3d 904, 906-08 (7th Cir. 2015); United States v. Carter, 500 F.3d 486, 490 (6th Cir. 2007); United States v. Maxwell, No. 99-7153, 2000 WL 341917, at *1 (4th Cir. 2000); United States v. Bennett, Nos. 3:10CR84, 3:12CV524, 2013 WL 170333, at *10 (W.D.N.C. Jan. 16, 2013).

As our court has explained, procedural restrictions on § 2255 petitions - including a strictly enforced one-year limitations period, see 28 U.S.C. § 2255(f), and significant limits on second or "successive" petitions, see id. § 2255(h) - mean that recharacterizing a pro se filing as a § 2255 petition "can have adverse consequences" for the petitioner. United States v. Blackstock, 513 F.3d 128, 131 (4th Cir. 2008). As a result, courts must warn pro se litigants of those consequences and confirm their intent to proceed under § 2255. SeeCastro, 540 U.S. at 383; seealsoBlackstock, 513 F.3d at 132. . . .

Balancing those factors and determining whether a pro se filing, liberally construed, should be recharacterized is a matter of district court discretion. SeeBlackstock, 513 F.3d at 131. Accordingly, we review such a determination only for an abuse of discretion. SeeValadez-Camarena, 402 F.3d at 1261; United States v. Saquella, 442 F. App'x 847, 848 (4th Cir. 2011).

The problem here is that we can find no evidence that the district court actually exercised this discretion. The district court never addressed counsel's express request for recharacterization, and appears never to have considered whether "ignoring the legal label" that Brown had affixed to his pro se filing would "create a better correspondence between the substance of [Brown's] claim and [his motion's] underlying legal basis." Castro, 540 U.S. at 381-82.

. . . .

On this record, it

...