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Brisbane v. United States

United States District Court, D. South Carolina, Beaufort Division

May 26, 2017

JERMAINE ORLANDO BRISBANE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          DAVID C. NORTON, UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         I. FACTUAL AND PROCEDURAL HISTORY

         On 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 § 924(e).

         On 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”[1] 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).[2]

         After multiple hearings and rounds of briefing, the motion is now ripe for the court's review.

         II. STANDARDS OF REVIEW

         Summary 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.

         Brisbane proceeds under 28 U.S.C. § 2255, which provides, in relevant part:

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 the sentence.

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. 1958).

         III. DISCUSSION

         Brisbane 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.

         1. Faretta Claim

         During 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.[3] 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.

         The 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 ...


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