Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brown v. United States

United States District Court, D. Maryland

July 2, 2018

ANDRE BROWN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge.

         On September 19, 2008, Andre Brown ("Mr. Brown" or "Petitioner") pleaded guilty to possession of a firearm in furtherance of a drug trafficking crime resulting in death, in violation of 18 U.S.C. § 924(j). (ECF No. 209.) On December 11, 2008, this Court sentenced Petitioner to three-hundred and sixty (360) months' imprisonment. (ECF No. 241.)

         On November 11, 2017 Petitioner filed the pending Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. (ECF No: 470.) The Government's Response, filed February 9, 2018, argues that Petitioner's filing is untimely under 28 U.S.C. § 2255(f). (ECF No. 474.) On February 13, 2018, this Court ordered Petitioner to provide further information regarding his entitlement to either (a) one of the exceptions provided in 28 U.S.C. § 2255, or (b) equitable tolling of the one-year statute of limitations. (ECF No. 475.) Petitioner answered the Order on March 16, 2018. (ECF No. 476.) The parties' submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons stated herein, Petitioner Brown's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (ECF No. 470) is DENIED.

         BACKGROUND

         From 1996 to 2001, Jermaine Bell led a narcotics-trafficking organization known as "R-&-G," which distributed heroin, cocaine, and crack cocaine in the vicinity of Reisterstown Road and Gwynn Falls Parkway in Baltimore City. (ECF No. 209.) In 2001, as part of a drug turf war, Bell issued contracts for the murders of a rival gang's leader and several of the leader's associates. (Id.) Angelo Stringfellow was among the named associates, and Bell offered $25, 000 for his murder. (Id.) Per Bell's order, several individuals, including Mr. Brown, searched for Stringfellow, and on June 26, 2001, Brown and a co-defendant shot and killed Stringfellow as he sat in a parked car. (Id.)

         On September 19, 2008, Petitioner Brown pleaded guilty to Count Four of the Fourth Superseding Indictment (ECF No. 209), which charged him with possession of a firearm in furtherance of a drug trafficking crime resulting in death, in violation of 18 U.S.C. § 924(j). This Court sentenced Petitioner to three-hundred and sixty (360) months' imprisonment. (ECF No. 241.)

         On November 19, 2009, Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 asserting that he was denied his right to appeal and that he received ineffective assistance of counsel. (ECF No. 291.) This Court granted Petitioner's claim that defense counsel improperly denied his request to file a notice of appeal, and denied the other claims. (ECF No. 319-20.) Therefore, on August 4, 2010, this Court entered an Amended Judgment (ECF No. 321) allowing Petitioner to file a Notice of Appeal (ECF No. 324), which he filed that same day. Petitioner was appointed counsel to support his appeal. (ECF No. 327.) On May 19, 2011, the United States Court of Appeals for the Fourth Circuit affirmed this Court's Judgment, finding that Petitioner's guilty plea was knowing, voluntary, and supported by an adequate factual basis. United States v. Brown, 429 Fed.Appx. 328, 328-29 (4th Cir. 2011). The Fourth Circuit also found that his sentence was reasonable. Id.

         On November 11, 2017, more than five years after the Fourth Circuit affirmed the Judgment, Petitioner filed the pending Motion to Vacate under 28 U.S.C. § 2255 arguing that (1) he is actually innocent because his conduct was not proscribed by the statute of conviction to which he pleaded guilty and that (2) but for ineffective assistance of counsel, he would not have pleaded guilty. (ECF No. 470.) Petitioner filed the Motion based on an Affidavit signed on October 24, 2017. (ECF No. 470-1.)

         STANDARD OF REVIEW

         This Court recognizes that Petitioner is pro se and has accorded his pleadings liberal construction. See Erickson v. tardus, 551 U.S. 89, 94 (2007). Under 28 U.S.C. § 2255, a prisoner in custody may seek to vacate, set aside, or correct his sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to a collateral attack, Hill v. United States, 368 U.S. 424, 426-27 (1962) (citing 28 U.S.C. § 2255). "[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. addonizio, 442 U.S. 178, 185 (1979) (quoting Hill, 368 U.S. at 428).

         A one-year statute of limitations applies to § 2255 petitions. 28 U.S.C. § 2255(f). The 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 of the United States, 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. Id.; see also Whiteside v. United States, 775 F.3d 180, 183 (4th Cir. 2014). A conviction becomes final for the purpose of starting the one-year limitations period when the opportunity to appeal expires. See Clay v. United States, 537 U.S. 522, 524-25 (2003); United States v. Sosa, 364 F.3d 507, 509 (4th Cir. 2004).

         "[A]ctual innocence, if prove [n], serves as a gateway through which a petitioner may pass [notwithstanding] expiration of the statute of limitations." McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (Holding actual innocence is a miscarriage of justice exception to excuse an otherwise untimely habeas petition). An actual innocence claim "does not by itself provide a basis for relief' under 28 U.S.C. § 2255. Schlup v. Delo, 513 U.S. 298, 315 (1995). Rather, it is "a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Id. at 315. The Supreme Court has made clear that "actual innocence means factual innocence, not mere legal insufficiency." Bousky v. United States, 523 U.S. 614, 623-24 (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). "[T]enable actual-innocence gateway claims are rare." McQuiggin, 569 U.S. at 386. A credible actual innocence claim requires new reliable evidence "whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence" that was not presented at trial. Scbiup, 513 U.S. at 324. "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, - no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt" Id. at 329. "Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim." Id. at 315-17.

         ANALYSIS

         Petitioner asserts that the Affidavit of Jermaine Bell (ECF No. 470-1) proves he could not have been convicted under 18 U.S.C § 9240, the statute he pleaded guilty to, because of the Supreme Court's holding in United States v. Rodriguez-Moreno,526 U.S. 275 (1999). Therefore, Petitioner claims he is actually innocent of his statute of conviction. Furthermore, petitioner alleges that his pre-trial counsel provided ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.