United States v. Brown

          Julie E. Allyn, United States Attorney's Office, on behalf of Plaintiff

          Ray James Brown, Pro Se.

          ORDER

          SUSAN RICHARD NELSON, District Judge.

         This matter is before the Court on Defendant-Petitioner Ray James Brown's Pro Se Motion to Vacate, Set Aside, or Correct His Sentence Pursuant to 28 U.S.C. § 2255, [ECF No. 194], and his Pro Se Motion to Appoint Counsel [ECF No. 188]. For the reasons set forth below, both motions are denied.

         I. BACKGROUND

         Defendant Ray James Brown was convicted of two counts of possession of a firearm in furtherance of a crime of violence, with the crime of violence being a robbery offense, in violation of 18 U.S.C. § 924(c)(1) and (2). (See Indictment [Doc. No. 19]; Sentencing Judgment [Doc. No. 172].) Brown, along with two co-defendants, was involved in armed robberies of pharmacies in the spring of 2012. (Indictment, Counts 1-4; 6-12.) A handgun was used to accomplish a particular robbery on April 3, 2012. (Id., Count 3.)

         Although the Indictment charged Brown with eleven separate counts, he and the Government entered into a plea agreement. As a result, the Government agreed to move to dismiss Counts 1-2, 4, 6-9, and 11-12 against Brown in exchange for his guilty plea on Counts 3 and 10 (Possession of a Firearm in Furtherance of a Crime of Violence).

         On May 15, 2013, Brown was sentenced to a total term of 168 months in prison. (Sentencing Judgment at 1-2.) Specifically, the sentence was 84 months on Count 3 and 84 months on Count 10, to be served consecutively. (Id.) Brown did not file a direct appeal. He filed the instant pro se § 2255 motion, dated June 21, 2016, on June 24, 2016.

         II. DISCUSSION

         A. Section 2255 Motion

         Brown challenges his conviction under 18 U.S.C. § 924(c) by arguing that the statute is unconstitutional under Johnson v. United States, 135 S.Ct. 2551 (2015). (Def.'s § 2255 Mot. at 1-2.)

         Brown's motion fails for several reasons. First, his motion is time-barred. In relevant part to this case, § 2255(f) provides that a one-year limitations period begins to run on either “the date on which the judgment of conviction becomes final, ” or “the date on which the 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.” 28 U.S.C. §§ 2255(f)(1), (3). Under § 2255(f)(1), the limitations period expired in May 2014, one year after his judgment of conviction became final. And under § 2255(f)(3), while Brown's motion was filed within one year of the Johnson decision, his motion is nevertheless barred because Johnson did not create a right applicable to these facts.^[1]

         As noted, Brown was convicted under § 924(c)(1) and (2). Johnson struck down the residual clause of a portion of the Armed Career Criminal Act (“ACCA”), § 924(e)(2)(B)(ii), applicable to persons convicted under 18 U.S.C. § 922(g). Brown, however, was not convicted under § 922(g), nor was he sentenced under the ACCA.

         The statute under which Brown was convicted and sentenced for the claims raised in Counts 3 and 10, § 924(c)(1)(A), provides specific mandatory minimum sentences for persons convicted of a “crime of violence” or “drug trafficking crime, ” who use or carry a firearm in furtherance of that crime. Section ...