United States District Court, D. Minnesota
E. Allyn, United States Attorney's Office, on behalf of
James Brown, Pro Se.
RICHARD NELSON, District Judge.
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.
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.)
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).
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.
Section 2255 Motion
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.)
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.
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.
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 ...