United States District Court, D. South Carolina, Beaufort Division
C. NORTON, UNITED STATES DISTRICT JUDGE
Jermaine Orlando Brisbane filed a motion to vacate, set
aside, or correct sentence under 28 U.S.C. § 2255
alleging that the Supreme Court's decision in Johnson
v. United States, 135 S.Ct. 2551 (2015), entitles him to
relief on his 2005 conviction for felon in possession of a
firearm. Because Brisbane still qualifies as an armed career
criminal, the court denies the motion.
FACTUAL AND PROCEDURAL HISTORY
September 21, 2004, Jermaine Orlando Brisbane
(“Brisbane”) entered a plea of guilty to the
offense of felon in possession of a firearm under 18 U.S.C.
§922(g)(1), §924(a)(2), and §924(e). In
preparation for Brisbane's sentencing, the United States
Probation Office prepared a Presentence Report
(“PSR”) which determined that Brisbane had been
convicted of at least three violent felonies, serious drug
offenses, or both, triggering the armed career criminal
sentencing enhancement contained in 18 U.S.C. §924(e).
The qualifying predicate convictions that the PSR identified
were: (1) burglary, second degree in 1991; (2) distribution
of cocaine, three counts in 1992; (3) criminal sexual
conduct, third degree in 1995; and (4) assault and battery of
a high and aggravated nature in 1997. PSR ¶ 7. Relying
upon the recommendations in the PSR, the district court
sentenced him to 195 months imprisonment, based in part on an
enhancement because Brisbane was an armed career criminal
within the meaning of the United States Sentencing Guidelines
April 20, 2016, Brisbane filed a motion to correct his
sentence pursuant to 18 U.S.C. § 2255, citing the
Supreme Court's recent decision in Johnson v. United
States, 135 S.Ct. 2251 (2015), arguing that he no longer
has the requisite number of qualifying predicate offenses to
be found an armed career criminal and so his current sentence
violates due process. ECF No. 42. The government filed a
motion to dismiss or in the alternative to grant summary
judgment on May 31, 2016, to which Brisbane responded on June
2, 2016. The government replied on June 10, 2016. The court
held a hearing on June 23, 2016, and a second hearing on
August 31, 2016. After hearing arguments from the parties,
the court set a “resentencing” hearing and
ordered additional briefing on two issues: (1) Brisbane's
waiver of argument relating to his 1992 convictions for
distribution of cocaine in Jasper County, South Carolina; and
(2) whether Brisbane's 1992 guilty plea for distribution
of cocaine was uncounseled in violation of Faretta v.
California, 422 U.S. 806 (1975). After the parties
further briefed these two issues, the court held a second
“sentencing” hearing on April 3, 2017. After
considering the arguments at the hearing, the court ordered
the parties to submit an additional round of supplemental
briefing on the issue of whether Brisbane's
Faretta claim is untimely under the statute of
limitations in 28 U.S.C. § 2255(f).
multiple hearings and rounds of briefing, the motion is now
ripe for the court's review.
STANDARDS OF REVIEW
judgment shall be granted if the movant shows that there is
no genuine dispute as to any issue of material fact and that
he is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a). Where there is a “genuine” dispute about a
material fact and a reasonable jury could return a verdict
for the nonmoving party, summary judgment is not appropriate.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). At this stage, the court must view the evidence in
the light most favorable to the non-moving party and draw all
reasonable inferences in his favor. Id. at 255.
proceeds under 28 U.S.C. § 2255, which provides, in
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground 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, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a). The burden of proof rests upon
Brisbane to establish the allegations of his petition by a
preponderance of the evidence. See, e.g.,
Miller v. United States, 261 F.2d 546, 547 (4th Cir.
filed this § 2255 petition asserting that he was
wrongfully sentenced as an armed career criminal under the
Armed Career Criminal Act (“ACCA”) in light of
the Supreme Court's recent decision in Johnson,
which was made retroactive to cases on collateral review by
Welch v. United States, 136 S.Ct. 1257 (2016).
Brisbane first argues that, in the wake of Johnson,
he does not have the requisite number of qualifying predicate
offenses to be considered an armed career criminal, and asks
the court to vacate his sentence, appoint counsel, and
resentence him without the armed career criminal enhancement.
Second, Brisbane argues that he did not have counsel when he
entered a guilty plea in 1992 for his three counts of
distribution of cocaine, in violation of the “knowing
and voluntary waiver of counsel” requirement set forth
in Faretta v. California. Brisbane also raises the
issue of his post-sentence rehabilitation as a separate
ground for granting his § 2255 petition under Pepper
v. United States, 562 U.S. 476 (2011). The court
addresses each argument in turn.
the August 31, 2016 hearing, Brisbane presented arguments
relating to objections raised to the revised PSR, and
testified about the absence of counsel for his 1992 South
Carolina guilty plea that he entered for three counts of
distribution of cocaine. The court continued the hearing and
instructed the parties to procure an affidavit from the South
Carolina Circuit Court judge who presided over his 1992
guilty plea. The court now holds that regardless of the
merits of his Faretta claim, Brisbane has
procedurally defaulted on it because he has both waived it
and it is untimely under the statute of limitations in 28
U.S.C. § 2255(f). Brisbane's 1992 conviction for the
three counts of distribution of cocaine remains a predicate
conviction for purposes of determining whether he is an armed
career criminal in the wake of Johnson.
Sixth Amendment “right to assistance of counsel
implicitly embodies a correlative right to dispense with a
lawyer's help.” Faretta, 422 U.S. at 814
(citations and quotations omitted). However, prior to
permitting a criminal defendant to proceed pro se, a
court must determine that the waiver of counsel is
“knowing, voluntary, and intelligent.” Iowa
v. Tovar, 541 U.S. 77, 88 (2004) (citing Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)). Under the Sixth
Amendment, an uncounseled felony conviction cannot be used
for certain purposes-namely, it cannot be used for a
subsequent conviction or sentence because such a sentence
enhancement depends upon the “reliability of a past
uncounseled conviction.” Lewis v. United
States, 445 U.S. 55, 66 (1980). The Fourth Circuit has
found that the defendant has the burden of proving a
constitutional defect regarding the prior conviction.
United States v. Collins, 415 F.3d 304, 315 (4th
Cir. 2005). In Collins, the Fourth Circuit noted
that where a transcript is ...