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Brown v. United States

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

August 15, 2019

George Alden Brown, Movant,
v.
United States of America, Respondent.

          ORDER

          Margaret B. Seymour Senior United States District Judge

         Movant George Aden Brown is an inmate in custody of the Bureau of Prisons. He seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

         I. BACKGROUND

         In 1999, Movant pleaded guilty before the Honorable Patrick Michael Duffy to five charges: two counts of Hobbs Act robbery, see 18 U.S.C. § 1951(a) (Counts 1 and 4); two counts of use of a firearm during and in relation to those robberies, see 18 U.S.C. § 924(c) (Counts 2 and 5); and one count of possession of a firearm after a felony conviction, see 18 U.S.C. § 922(g) (Count 3). Movant's criminal history included two convictions in North Carolina for robbery with a dangerous weapon and three convictions in South Carolina for strong arm robbery. Based on that criminal history, Movant was subject to a fifteen-year mandatory minimum sentence on his felon-in-possession charge under the Armed Career Criminal Act (“ACCA”). See 18 U.S.C. § 924(e)(1). Movant was also deemed a career offender under the United States Sentencing Guidelines as a result of his criminal history. See U.S.S.G. § 4A1.1(a). Finally, because Movant's two Hobbs Act robberies constituted “crime[s] of violence” under § 924(c), he faced an additional mandatory prison term for each of his § 924(c) charges. Judge Duffy sentenced Movant to 622 months in prison-262 months for Count 3; 240 months each as to Counts 1 and 4, to be served concurrently with the sentence on Count 3; 60 consecutive months on Count 2; and 300 consecutive months on Count 5.

         In 2001, Movant filed a § 2255 motion asserting several constitutional violations. The court rejected most of his arguments but found merit to his claim that his 300-month sentence on Count 5 violated the Constitution's Ex Post Facto clause. Accordingly, on August 22, 2002, Judge Duffy reduced his sentence on that charge to 240 months. ECF No. 26. Movant appealed; the Fourth Circuit dismissed the appeal. Brown v. United States, 65 Fed.Appx. 467 (4th Cir. 2003) (per curiam).

         Upon authorization by the Fourth Circuit, see In re Brown, No. 16-902 (4th Cir. June 6, 2016), Movant filed the pending § 2255 motion on June 27, 2016. ECF No. 31. In the motion, Movant argues that the sentences for his two § 924(c) convictions are unconstitutional under Johnson v. United States, 135 S.Ct. 2551 (2015). The Government responded by filing a motion to dismiss, ECF No. 35, and Movant replied by amending his § 2255 motion to add challenges to his ACCA enhancement and to his career-offender designation, ECF No. 42. In an order issued November 30, 2016, Judge Duffy determined that Movant's challenges to the ACCA enhancement and career-offender designation were without merit because his robbery convictions count as predicate violent felonies under ACCA and predicate crimes of violence under the Sentencing Guidelines. ECF No. 43 at 4, 6. With respect to Movant's arguments regarding the sentences for his two § 924(c) convictions, Judge Duffy noted that the same issues were before the Fourth Circuit in the matters of United States v. Simms, No. 15-4640 (4th Cir. filed Oct. 23, 2015) (considering whether § 924(c)(3)(B) is unconstitutionally vague) and United States v. Ali, No. 15-4433 (4th Cir. filed July 10, 2015) (considering whether Hobbs Act robbery is a crime of violence for the purpose of § 924(c)(3)(A)). Accordingly, Judge Duffy stayed proceedings on that portion of the § 2255 motion pending the Fourth Circuit's decision in the two cases. Id. at 7. This case was reassigned to the undersigned on October 4, 2018.

         The Fourth Circuit decided Simms on January 24, 2019. United States v. Simms, 914 F.3d 229 (4th Cir. 2019). On February 11, 2019, the Fourth Circuit placed in abeyance Ali pending a decision by the Supreme Court in United States v. Davis, 139 S.Ct. 2319 (2019). Ali, No. 15-4433, ECF No. 112 (4th Cir. Feb. 11, 2019). On June 24, 2019, the Supreme Court decided Davis. 139 S.Ct. at 2319. The court finds that the matter is ripe for disposition. For the reasons discussed below, the motion to dismiss is granted and the § 2255 motion is denied.

         II. DISCUSSION

         A. Legal Standard

         A federal prisoner in custody may challenge the fact or length of his detention by filing a motion pursuant to 28 U.S.C. § 2255. To receive relief under § 2255, a movant is required to prove by a preponderance of the evidence that his 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. 28 U.S.C. § 2255(a). If this showing is made, the court must “vacate and set the judgment aside” and “discharge the prisoner or resentence him or grant a new trial to correct the sentence as may appear appropriate.” Id. at § 2255(b). If, on the other hand, “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, ” the court may summarily deny the petition without holding a hearing. 28 U.S.C. § 2255(b) (providing that a hearing is not required on a § 2255 motion if the record of the case conclusively shows that a movant is entitled to no relief); see Rule 4(b), Rules Governing Section 2255 Proceedings. Generally, when a movant attacks his sentence based upon errors that could have been but were not pursued on direct appeal, the movant must show cause and actual prejudice resulting from the errors of which he complains or he must demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack. See United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)); United States v. Maybeck, 23 F.3d 888, 891-92 (4th Cir. 1994).

         A movant must file a § 2255 motion one year from the latest of: 1) the date on which a judgment of conviction becomes final; 2) the date on which an impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the defendant was prevented from making a motion by such governmental action; 3) the date on which a 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). A judgment of conviction becomes final when the time for seeking review expires. Clay v. United States, 537 U.S. 522, 525 (2003).

         B. Analysis

         Movant seeks a correction of his sentence on the basis that the Supreme Court has newly recognized a right and made that right retroactively applicable to cases on collateral review. In Johnson, the Supreme Court addressed the ACCA's mandate that imposes an enhanced sentence for an offender convicted of being a felon in possession of a firearm if the offender has three or more convictions for a serious ...


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