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Brown v. United States

United States District Court, N.D. Georgia, Atlanta Division

June 22, 2018

DERRICK A. BROWN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Magistrate Judge Janet F. King's Final Report and Recommendation [90] (“Final R&R”), recommending denial of Movant Derrick A. Brown's (“Movant”) Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 [82] (“Motion to Vacate”).

         I. BACKGROUND

         On April 11, 2006, Movant was indicted by a grand jury sitting in the Northern District of Georgia on seven counts of bank robbery by force or violence and six counts of possessing a firearm in furtherance of a crime of violence. (See generally Indictment [9]). On March 20, 2007, Movant pled guilty to Counts Four and Six of the Indictment, which charged violations of 18 U.S.C. § 924(c)(1)(A)(ii) for possessing a firearm in furtherance of a crime of violence. ([41]; [41.1]). The remaining counts of the Indictment were dismissed, and, by judgment entered on February 25, 2008, the Court imposed a 384 month sentence. ([56]; [57]). On February 29, 2008, Movant appealed, and, on August 18, 2008, the Eleventh Circuit Court of Appeals affirmed the judgment against him. ([77]). The Eleventh Circuit's opinion states that Movant challenged his guilty plea, but does not show that he challenged his sentence. (Id.). On June 23, 2016, Movant, proceeding pro se, filed his Motion to Vacate raising a collateral challenge to his sentence under 28 U.S.C. § 2255. ([82]).

         On April 25, 2017, the Magistrate Judge issued the Final R&R, recommending Movant's Motion to Vacate be denied. ([90] at 9). No. party filed objections to the Final R&R.

         II. LEGAL STANDARDS

         A. 28 U.S.C. § 2255 Motion

         Under 28 U.S.C. § 2255, a federal prisoner may file a motion to vacate his sentence “upon the ground[s] that the sentence was imposed in violation of the Constitution or laws of the United States, [] that the court was without jurisdiction to impose such sentence, [] that the sentence was in excess of the maximum authorized by law, or [that the sentence] is otherwise subject to collateral attack.” See 28 U.S.C. § 2255(a). Collateral relief, however, is limited. It is well-settled that “to obtain collateral relief, a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982). The movant bears the burden of persuasion, which “is supposed to be a heavy one.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).

         Matters decided on direct appeal cannot be re-litigated under § 2255, and matters that could have been raised on direct appeal, but were not, are generally foreclosed. Hidalgo v. United States, 138 Fed.Appx. 290, 291 (11th Cir. June 29, 2005) (citing Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004). Thus, § 2255 relief “is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” Lynn, 365 F.3d at 1232 (quoting Richards v. United States, 837 F.2d 965, 966 (11th Cir. 1988) (internal quotation marks omitted). A constitutional claim of ineffective assistance of counsel generally is properly raised on collateral review to allow for adequate development and presentation of relevant facts. Massaro v. United States, 538 U.S. 500, 505-09 (2003). “An evidentiary hearing is not required when ‘the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'” Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (quoting § 2255).

         B. Magistrate Judge's Report and Recommendation

         After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). With respect to those findings and recommendations to which objections have not been asserted, the Court must conduct a plain error review of the record. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). Where, as here, no party filed objections, the Court conducts a review for plain error.

         III. DISCUSSION

         A. The Motion to Vacate

         Movant claims that his predicate armed bank robbery offenses do not qualify as crimes of violence under the use-of-force/elements clause in § 924(c)(3)(A), or the residual clause in § 924(c)(3)(B), which he contends is void for vagueness under Johnson v. United States, 135 S.Ct. 2551 (2015). ([82.1] at 2-13). Respondent argues that Movant's claim is procedurally defaulted, that the Johnson holding does not apply to ยง 924(c), and that, even ...


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