Opinion
CIVIL ACTION NO. 1:15-CV-4229-RWS-CMS CRIMINAL ACTION NO. 1:04-CR-591-3-RWS
12-09-2015
ALBERT A. BROWN, BOP ID 56395-019, Movant, v. UNITED STATES OF AMERICA, Respondent.
MOTION TO VACATE 28 U.S.C. § 2255 FINAL REPORT AND RECOMMENDATION
This matter is before the Court on Albert A. Brown's pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody and accompanying memorandum of law [304]. For the following reasons, Mr. Brown's motion should be denied and a certificate of appealability should be denied.
In 2004, Brown and two co-defendants, carrying firearms, robbed a restaurant in Atlanta, Georgia, and fled in a van at a high rate of speed, nearly striking a woman and a small boy. See United States v. Brown, 181 F. App'x 969, 970 (11th Cir. 2006). Mr. Brown pleaded guilty to all five counts of the Indictment, and he was sentenced as an armed career criminal under the Armed Career Criminal Act (the "ACCA"). Id.
On direct appeal, the United States Court of Appeals for the Eleventh Circuit rejected Mr. Brown's argument that he did not have at least three qualifying prior offenses, concluding that he had three qualifying "serious drug offense[s]," rendering it unnecessary to decide whether Mr. Brown's prior robbery conviction constituted a "violent felony" under the ACCA's "residual clause." Id. at 970-71. The Eleventh Circuit then affirmed Mr. Brown's 180-month mandatory minimum sentence under the ACCA. Id. at 972.
In the § 2255 motion that he has now filed to challenge his sentence some nine years after the Eleventh Circuit issued its decision, Mr. Brown raises two arguments. First, Mr. Brown contends that the United States Supreme Court's recent decision in Johnson v. United States, 135 S. Ct. 2551 (2015), applies retroactively to his case. Mr. Brown cannot be granted relief on this basis, however, because the Eleventh Circuit has already clearly held that "Johnson did not establish a new rule of constitutional law made retroactive to cases on collateral review." In re: Rivero, 797 F.3d 986, 987 (11th Cir. 2015). In any event, Johnson would not provide a basis for relief for Mr. Brown - even if it were retroactively applicable - because it dealt with "residual clause" offenses under the ACCA, and Mr. Brown's three qualifying offenses were for "serious drug crimes."
Mr. Brown also argues that "imposing a sentence under the career and armed career offender status violated the Petitioner's Fifth Amendment rights to due process[] based on the residual clause's unconstitutional vagueness, arbitrariness, and indeterminacy" . Again, it must be noted that Mr. Brown's sentence was enhanced based on three qualifying prior "serious drug offenses," without application of the "residual clause." Furthermore, Mr. Brown did not raise this constitutional challenge to the "residual clause" in his direct appeal, thus procedurally defaulting it in circumstances where neither of the exceptions to the procedural default rule applies. See generally McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011). Finally, even if this claim was being raised appropriately for the first time in a collateral challenge to Mr. Brown's sentence, it would be time-barred because the one-year statute of limitations for asserting it has expired. See 28 U.S.C. § 2255(f).
The undersigned RECOMMENDS that Mr. Brown's motion [304] be DISMISSED and a certificate of appealability be DENIED because it is apparent that he is not entitled to federal habeas corpus relief and he has not demonstrated that the issue is reasonably debatable. See 28 U.S.C. foll. § 2255, Rule 4; Slack v. McDaniel, 529 U.S. 473 (2000).
The Clerk is DIRECTED to terminate the referral of this case to the undersigned.
SO RECOMMENDED AND DIRECTED, this 9th day of December, 2015.
/s/_________
CATHERINE M. SALINAS
UNITED STATES MAGISTRATE JUDGE