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United States v. Brown

United States District Court, E.D. Virginia, Richmond Division

August 2, 2019

UNITED STATES OF AMERICA
v.
CARLTON BROWN, Petitioner.

          MEMORANDUM OPINION

          M. Hannah Lauck United States District Judge.

         Carlton Brown, a federal inmate proceeding pro se, brings this motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion," ECF No. 28). The Government has responded, asserting, inter alia, that the relevant statute of limitations bars relief. (ECF No. 39.) Despite the provision of notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and an extension of time, Brown filed no reply. For the reasons set forth below, the Court will deny Brown's § 2255 Motion. (ECF No. 28.)

         I. Procedural History

         On December 5, 1990, a grand jury charged Brown with: conspiracy, in violation of 21 U.S.C. § 846 (Count One); murder in aid of racketeering activity, in violation of 18 U.S.C. § 1959 and 18 U.S.C. § 2 (Count Six); distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Sixteen); possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(1)(B) (Count Seventeen); and engagement in a Continuing Criminal Enterprise, in violation of 21 U.S.C. § 848 (Count Twenty-Two). (Indictment 1-7, 9-10, 15, 18). Following a trial, a jury convicted Brown of all counts. See United States v. Johnson, Nos. 91-5304, 91-5310, 91-5311, 91-5312, 91-5321, 91-5322, 91-5323, 91-5332, 1992 WL 134483, at *1 (4th Cir. June 18, 1992); (see also ECF No. 29-2, at 2.) The Court sentenced Brown to life imprisonment on Counts One, Six, and Twenty-Two, 240 months of imprisonment on Count Sixteen, and 120 months of imprisonment on Count Seventeen. (See ECF No. 29, at 1; see also ECF No. 39, at 1-2.)

         Brown, through counsel, filed a Notice of Appeal to the United States Court of Appeals for the Fourth Circuit. See Johnson, 1992 WL 134483, at *1. The Fourth Circuit affirmed this Court's judgment on Counts Six, Sixteen, Seventeen, and Twenty-Two. See Id. at *3. With respect to Count One, the Fourth Circuit concluded that "the district court erred when it imposed a sentence on [Brown's] conspiracy conviction[]," explaining that "Congress did not intend that an individual be punished under both § 846 (conspiracy) and § 848 (continuing criminal enterprise)." Id. (quoting United States v. Porter, 821 F.2d 968, 978 (4th Cir. 1987)). The Fourth Circuit vacated the sentence imposed for Count One and remanded the action for resentencing. Id. With respect to the impact of the vacation of the sentence imposed for Count One, the Fourth Circuit noted that "[i]n light of the multiple life sentences imposed on... Carlton in counts six (murder in furtherance of racketeering activity) and twenty-two (CCE), our vacation of the sentence[] imposed on the conspiracy count (count one) bears little import." Id. at *3 n.3.

         On June 20, 2016, Brown placed the present § 2255 Motion in the prison mail system. (§ 2255 Mot. 12.)[1] The Court deems the § 2255 Motion filed as of that date. Houston v. Lack, 487 U.S. 266, 276 (1988). In his § 2255 Motion, Brown contends that he is entitled to relief because: (i) his conviction of murder in aid of racketeering activity, in violation of 18 U.S.C. § 1959, (Count Six), violates due process in light of the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015); (ii) his conviction of engagement in a continuing criminal enterprise, in violation of 21 U.S.C. § 848, (Count Twenty-Two), "is erroneously contingent on [the] validity of Count[] Six," and in light of Johnson, this conviction also violates due process; and, (iii) his sentence on "four counts of conviction to be served concurrently, and a fine of $250.00 dollars [is] in error" because "Counts 16, 17, and 22 of the Indictment are invalid in relation to [the] application of the constitutional principles set forth in Johnson, which invalidates Count[s] 6 and 22." (§ 2255 Mot. 4-6.) Brown contends that his § 2255 Motion is timely filed because he filed it within one year of the Supreme Court's decision in Johnson. (Id. at 10.) As explained below, the decision in Johnson fails to provide Brown a belated commencement of the limitation period and the action is untimely.

         II. Analysis

         A. Running of the Statute of Limitations

         Section 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") amended 28 U.S.C. § 2255 to establish a one-year period of limitation for the filing of a § 2255 Motion. Specifically, 28 U.S.C. § 2255(f) now reads:

(f) A 1 -year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of __
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) 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; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the ...

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