United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
matter is before the Court upon initial review of the pro se
motion to vacate under 28 U.S.C. § 2255 (filing 153)
filed by the defendant, Diwancha Shontall Brown. The
Court's initial review is governed by Rule 4(b) of the
Rules Governing Section 2255 Proceedings for the United
States District Courts, which provides:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
§ 2255 movant is entitled to an evidentiary hearing
unless the motion and the files and records of the case
conclusively show that the movant is entitled to no relief.
§ 2255(b); Sinisterra v. United States, 600
F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to
vacate under § 2255 may be summarily dismissed without a
hearing if (1) the movant's allegations, accepted as
true, would not entitle the movant to relief, or (2) the
allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact. Engelen v.
United States, 68 F.3d 238, 240 (8th Cir. 1995); see
also Sinisterra, 600 F.3d at 906.
was charged on May 22, 2012 with a single count of conspiring
to distribute 280 grams or more of crack cocaine. Filing 1.
He pled guilty. Filing 60; filing 61; filing 67; filing 68.
He had two relevant prior convictions: Nebraska state
convictions for possession with intent to deliver a
controlled substance, and for assault in the first degree.
Filing 93 at 12-14. So, the presentence report (PSR)
concluded that Brown was a career offender. Filing 93 at 8,
16. In the end, based on a total offense level 34 and
criminal history category VI, the PSR found a guideline
imprisonment range of 262 to 327 months. Filing 93 at 26;
filing 94 at 1.
through counsel, objected to application of the career
offender guideline. Filing 89. The Court overruled the
objection, filing 90 at 2, and imposed a sentence of 262
months' imprisonment, filing 96 at 2. The Court's
judgment was entered on July 15, 2013. Filing 96. Brown did
not appeal. The present § 2255 motion was filed on
January 11, 2018. Filing 153.
§ 2255 motion presents three claims: that (1) assault in
the first degree is no longer a crime of violence for
purposes of career offender status, (2) possession with
intent to deliver is no longer a predicate offense for career
offender status, and (3) he received ineffective assistance
of counsel in failing to object to drug quantities. Filing
152 at 4-7. But the initial question is whether Brown's
claims are timely. A § 2255 motion must be filed within
1 year from "the date on which the judgment of
conviction becomes final." 28 U.S.C. § 2255(f)(1).
And Brown's claims are over 3 years late.
that problem, Brown relies on McQuiggin v. Perkins,
569 U.S. 383 (2013). McQuiggin holds that a claim of
actual innocence can overcome the statute of limitations for
a habeas claim. Id. at 392. And Brown says he is
asserting a claim of actual innocence. Filing 153 at 12.
problem is that he's not asserting a claim of
actual innocence. Such a claim is cognizable "only when
a petition presents evidence of innocence so strong that a
court cannot have confidence in the outcome of the trial
unless the court is also satisfied that the trial was free of
nonharmless constitutional error." Id. at 401
(cleaned up) (citing Schlup v. Delo, 513 U.S. 298,
316 (2013)). Brown alleges nothing that can be read to
support such a claim. His claims are all predicated on
alleged defects in his sentencing, and advance no claim that
he is actually innocent of the crime to which he pled guilty.
Nor does he proffer any explanation for his admission, in
connection with his guilty plea, of the conduct underlying
his conviction. See filing 67 at 18-19; see also
Nguyen v. United States, 114 F.3d 699, 703 (8th Cir.
1997) (representations during plea-taking carry strong
presumption of verity).
had Brown advanced an actual innocence claim, the Court is
not convinced it would save his other claims. It is not
persuasive to think that an actual innocence claim can serve
as a Trojan Horse to slip other, less extraordinary claims
past the gate of the statute of limitations. But here, Brown
has not alleged even that much. All his claims are clearly
even if considered on the merits, Brown's claims are
insufficient. He offers no explanation for why the predicate
offenses for his career offender status are purportedly no
longer predicate offenses, nor any explanation for why even
if that was true, those changes would be retroactive. And his
claim to have been deprived of effective assistance of
counsel based on failure to object to drug quantity fails as
well, for at least two reasons. First, he admitted to the
quantity reflected in the PSR's drug quantity
calculation. See filing 67 at 18-19; filing 93 at 7.
And second, his ...