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United States v. Brown

United States District Court, D. Maryland

August 9, 2017

UNITED STATES OF AMERICA
v.
MARLO BROWN, Defendant.

          MEMORANDUM ORDER

          Richard D. Bennett, United States District Judge.

         Defendant Mario Brown ("Defendant" or "Brown") pled guilty before this Court to one count of Distribution of Cocaine Base, in violation of 21 U.S.C. § 841(a). See]., p. 1, ECF No. 22. At sentencing, this Court found that Brown was a "career offener" under Section 4B1.1 of the United States Sentencing Guidelines and ultimately sentenced him to 151 months imprisonment, pursuant to the Career Offender guidelines, followed by five years of supervised release. Id., at 1-3. Brown filed an untimely Notice of Appeal of this Court's Judgment to the United States Court of Appeals for the Fourth Circuit (ECF No. 24), which the Fourth Circuit subsequently dismissed as untimely via Order and Judgment dated March 17, 2009 (ECF Nos. 31 & 32). Following the dismissal of his appeal, Brown filed his first Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 in this Court (ECF No. 39) arguing, inter alia, that he had asked his attorney to file a timely Notice of Appeal, but that his attorney failed to do so. Via Amended Order dated April 25, 2011 (ECF No. 53), this Court granted Brown a hearing as to his attorneys' failure to file a timely Notice of Appeal, but denied his motion as to all remaining arguments. This Court appointed counsel to represent him, see Order, ECF No. 54, and a hearing was held on August 25, 2011.[1] Via Memorandum Order dated August 26, 2011 (ECF No. 64), this Court granted Brown's Motion to Vacate as to his attorney's failure to file a timely Notice of Appeal. Accordingly, this Court issued an Amended Judgment (ECF No. 65) and allowed Brown to file an appeal of that Judgment. The Fourth Circuit ultimately affirmed this Court's Judgment and denied Brown's petition for a rehearing en banc. See J., ECF No. 77; Order, ECF No. 79.

         Subsequently, Brown filed a series of pro se Motions to Reduce Sentence, pursuant to 18 U.S.C. § 3582(c)(2), in light of Amendment 750 to the United States Sentencing Guidelines, which lowered the offense levels applicable to crack cocaine offenses. This Court again appointed counsel to represent Brown and ultimately denied his motions via Memorandum Order dated June 24, 2013 (ECF No. 93), as he was sentenced pursuant to the Career Offender provisions of the Sentencing Guidelines and, therefore, was not entitled to relief based on a retroactive amendment to the Crack Cocaine guidelines.[2] He appealed this Court's Order to the United States Court of Appeals for the Fourth Circuit, and the Fourth Circuit affirmed this Court via Judgment dated October 25, 2013 (ECF No. 97). Brown later filed yet another Motion to Reduce Sentence, pursuant to 18 U.S.C. § 3582(c)(2), in light of Amendment 782 to the United States Sentencing Guidelines, which lowered the offense levels for drug offenses. See Mot., ECF No. 99. This Court likewise denied that Motion via Order dated August 25, 2015 (ECF No. 101). Finally, Brown filed a second Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (ECF No. 106), in light of the United States Supreme Court's intervening decision in Johnson v. United States, 135 S.Ct. 2551 (2015)[3]. Counsel was again appointed to represent Brown as to that Johnson challenge, although Brown later voluntarily dismissed his motion.

         Now, over nine years after this Court's initial entry of judgment and after this Court's appointment of three separate attorneys to represent Brown on multiple motions for post-conviction relief, Brown has filed a letter (ECF No. 109) "requesting an attorney to file on [his] behalf pertaining to a Mathis challenge as the 7th Circ[uit] has made a ruling in this matter, " which this Court construes as a Motion to Appoint Counsel. Petitioner has not filed any motion setting forth his argument for post-conviction relief under '''Mathis" nor is it clear exactly what Seventh Circuit authority he refers to.[4] This Court has reviewed Brown's submission, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow, Brown's Motion to Appoint Counsel (ECF No. 109) is DENIED.[5]

         ANALYSIS

         There is no Sixth Amendment tight to counsel to pursue a petition for collateral relief. See Pennsylvania v. Finely, 481 U.S. 551, 555 (1987). A court may provide counsel for an indigent inmate pursuing a petition for habeas corpus if that die court "determines mat the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B). Rule 8(c) of the Rules Governing Section 2255 Cases provides that a court must appoint counsel "[i]f an evidentiary hearing is warranted." Brown has not articulated the grounds on which he wishes to attack his conviction and sentence, nor has he filed a Motion to Vacate. Nothing in the record suggests that he is unable to articulate such claims if they exist. Until a Motion is filed, this Court cannot determine whether a hearing will likely be held in this matter.

         Brown is further cautioned that under the provisions of 28 U.S.C. § 2255, a one-year limitations period runs 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. Additionally, "[w]hile a federal inmate may file one § 2255 motion to Vacate, set aside or correct [his] sentence' after his judgment of conviction has become final ... he must obtain authorization from 'a panel of the appropriate court of appeals' before presenting '[a] second or successive motion.' " In re Vassell, 751 F.3d 267, 268-69 (4th Cir. 2014) (quoting 28 U.S.C. § 2255).

         CONCLUSION

         For these reasons, it ...


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