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Brown v. United States

United States District Court, D. New Hampshire

June 7, 2016

EDWARD LEWIS BROWN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE

         Petitioner Edward Lewis Brown, has moved, citing 28 U.S.C. § 2241, for a writ of habeas corpus. (Motion, ECF No. 12.) Petitioner cites Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015), as one of his bases for relief. (Motion at 10.) Because Petitioner remains in custody serving the sentence on one of the two underlying criminal judgments challenged in the pending petition, the motion is in substance a 28 U.S.C. § 2255 motion, to vacate, set aside or correct Petitioner's sentence.[1]

         The Court appointed counsel to conduct an initial review to assess whether Petitioner may qualify for relief under either section 2241 or 2255 in light of Johnson. (Order, ECF No. 19.) The Court has ordered counsel to notify the Court when the review is completed and, if appropriate, file a supplemental motion for relief based on Johnson. (Id.)

         Based on a review of the record, the pending section 2255 motion is a second or successive motion subject to the gatekeeping requirements of 28 U.S.C. §§ 2244(b)(3), 2255(h). Accordingly, as explained below, I recommend the Court transfer the matter to the First Circuit.

         Discussion

         Petitioner is in custody pursuant to the judgment and sentence in United States v. Brown, No. 1:09-cr-00030-GZS (D. N.H. Jan. 11, 2010). In that case, Petitioner was convicted of multiple counts, including conspiracy to prevent federal officers from discharging their duties, 18 U.S.C. § 372; conspiracy to commit an offense against the United States, 18 U.S.C. §§ 371, 111(a)(1) & (b); carrying and possessing a firearm/destructive device in connection with a crime of violence, 18 U.S.C. §§ 924(c)(1)(A)(i), (ii), 924(c)(1)(B)(ii), 921(a)(3), (4), 2; felon in possession, 18 U.S.C. §§ 922(g)(1), 924(a)(2); obstruction of justice, 18 U.S.C. §1503; failure to appear for trial, 18 U.S.C. § 3146(a)(1), (b)(1)(A)(ii); and failure to appear for sentencing, 18 U.S.C. §3146(a)(1), (b)(1)(A)(ii). (Judgment, ECF No. 243 at 2.) The Court sentenced Petitioner to a total term of 444 months. (Id. at 3.) The First Circuit affirmed the conviction. United States v. Brown, 669 F.3d 10 (1st Cir. 2012).[2]

         Petitioner's prior section 2255 motion in the case docketed at No. 1:09-cr-00030-GZS was filed on February 1, 2016. (ECF No. 290.) On February 11, 2016, the Court denied the motion by an endorsed order that states "denied." Petitioner filed the pending motion on February 29, 2016.

         "‘[A] numerically second petition is not "second or successive" if it attacks a different criminal judgment or if the earlier petition terminated without a judgment on the merits.'" United States v. Barrett, 178 F.3d 34, 43 (1st Cir. 1999) (quoting Pratt v. United States, 129 F.3d 54, 60 (1st Cir. 1997)). Although the Court's February 1, 2016, decision does not explicitly state that the denial was on the merits, a review of the motion reveals that the Court denied the motion because the asserted claims plainly lacked merit. More specifically, Petitioner argued that the case caption in capital letters affected the Court's authority and jurisdiction; that Petitioner is not a United States citizen, but rather a private citizen; that counsel continued to represent Petitioner after the Court denied counsel's motions to withdraw; that the Court erred in deciding unspecified evidentiary issues; that the Court erred in telling the jury that the Court determined issues of law and the jury determined issues of fact; that the Court erred by not including Petitioner in sidebar conferences; and that Petitioner may challenge the judgment because he did not personally conduct cross-examination. (Motion, ECF No. 290 at 1-3.) Given the nature of Petitioner's arguments and the fact the Court cited no procedural basis for its denial of Petitioner's motion, one can reasonably conclude the Court's denial was on the merits of the motion.

         This Court lacks jurisdiction to consider a second or successive section 2255 motion unless the First Circuit has specifically authorized the Court to consider it. Section 2244 applies to second or successive section 2255 motions, pursuant to section 2255(h). Section 2244(b)(3)(A) states: "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." See also First Circuit Rule 22.1. The First Circuit has held:

"We have interpreted [section 2255(h)] as ‘stripping the district court of jurisdiction over a second or successive habeas petition unless and until the court of appeals has decreed that it may go forward.'" Trenkler v. United States, 536 F.3d 85, 96 (1st Cir. 2008) (quoting Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997)). A review of the record reveals no evidence that Petitioner has applied to the First Circuit for permission to file the pending second or successive motion. See 28 U.S.C. §§ 2244, 2255.

         Because the record lacks any evidence that the First Circuit has authorized Petitioner to proceed on the pending motion, the Court is without jurisdiction to consider the merits of the motion. First Circuit Rule 22.1(e) provides that if a second or successive section 2255 petition is filed in the district court without the required authorization from the First Circuit, the district court "will transfer the petition to the court of appeals pursuant to 28 U.S.C. § 1631 or dismiss the petition."[3] The issue, therefore, is whether the Court should dismiss or transfer the matter.

         Given that Petitioner relies on the Supreme Court's ruling in Johnson to support his motion and given that the one year limitations period for filing Johnson-related motions might soon expire, transfer is appropriate. See United States v. Barrett, 178 F.3d 34, 41 n.1 (1st Cir. 1999) (holding that transfer is not mandated, but noting "that transfer may be preferable in some situations in order to deal with statute of limitations problems or certificate of appealability issues"); In re Watkins, 810 F.3d 375, 378 (6th Cir. 2015) (noting that the district court had transferred to the circuit court, pursuant to section 1631, a second or successive section 2255 motion containing a claim under Johnson, 135 S.Ct. 2551, for the circuit court to consider whether to authorize the motion as a second or successive section 2255 motion).[4]

         Conclusion

         Based on the foregoing analysis, I recommend the Court transfer the pending section 2255 motion to the First Circuit, pursuant to 28 U.S.C. § 1631 and First Circuit Rule 22.1(e). If the Court adopts the recommendation, I recommend that the Court direct counsel to address any further Johnson-based requests to the First Circuit, pursuant to the appropriate sections of 28 U.S.C. §§ 2244, 2255, notwithstanding this Court's order (ECF No. 19) that he notify this Court of the results of his Johnson ...


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