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United States v. Brown

United States District Court, Third Circuit

July 16, 2013

UNITED STATES OF AMERICA
v.
ANDREW BROWN

MEMORANDUM

William H. Yohn Jr., Judge

Defendant, Andrew Brown, seeks relief from two orders that I issued denying his motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. He asks that I set aside the orders pursuant to my power to “entertain an independent action to relieve a party” from an order, Fed.R.Civ.P. 60(d)(1), or “set aside a judgment for fraud on the court, ” id. 60(d)(3).[1] For the reasons set forth below, I will dismiss Brown’s filing because, in actuality, it is an unauthorized successive § 2255 motion.

I. Factual and Procedural Background[2]

The facts underlying Brown’s conviction are set out in detail in an earlier opinion. See United States v. Brown, No. 99-370, 2006 WL 3000960 (E.D. Pa. Oct. 18, 2006). I briefly recount the relevant facts here. On September 28, 1999, police officers Olney Johnson and Fredrick Boyle of the Philadelphia Housing Authority (“PHA”) observed Brown standing in a PHA housing project holding a large handgun. When they exited their vehicle to investigate, Brown ran to a parked car and drove away. The officers pursued Brown for several blocks; the pursuit ended when Brown crashed into a telephone pole. Brown then left his car, dropped the handgun, and began running away. Eventually, the officers apprehended Brown and recovered the weapon. At trial, the government called two witnesses, Officer Johnson and Philadelphia Police Detective Timothy Brooks, who investigated Brown’s case after his arrest. Defense counsel called no witnesses, but attempted to impeach Brooks and Johnson and show that Brown never possessed the firearm. On June 1, 2000, a jury found Brown guilty under 18 U.S.C. § 922(g)(1) (felon in possession of a firearm).

Brown filed post-trial motions seeking arrest of judgment and a new trial based on newly discovered evidence, ineffectiveness of trial counsel, and deficiencies in the indictment. (See ECF 56.) He claimed that trial counsel was ineffective for failing to interview and call two witnesses, Aaron Devine and Latifah Holloway. Devine and Holloway’s statements also formed the basis of Brown’s new evidence claim. He claimed that trial counsel was ineffective for failing to file certain pretrial motions, including certain discovery and suppression motions. He also claimed that counsel was ineffective for advising him to stipulate that the gun at issue was manufactured outside of Pennsylvania, and for failing to challenge the court’s jurisdiction under § 922(g). Finally, Brown argued that the indictment was deficient because it did not contain or give adequate notice of the essential elements of the charged offense.

I denied the post-trial motions on March 12, 2001, without prejudice to defendant’s right to raise his ineffectiveness claims in a proceeding under § 2255. (ECF 66.) On May 7, 2001, I entered a final judgment of conviction and sentenced Brown to a prison term of 270 months. (ECF 73.)

Brown appealed his conviction and sentence, raising three arguments: (1) the interstate commerce element of § 922(g) was not met because there was no evidence that “the gun had a current effect on commerce”; (2) the sentence was excessive in that it exceeded the prescribed statutory maximum; (3) he was denied a fair trial. The Third Circuit rejected his arguments. First, “the transport of the weapon in interstate commerce, however remote in the distant past, gives its present intrastate possession a sufficient nexus to interstate commerce to fall within the ambit of the statute.” United States v. Brown, 54 F. App’x 342, 343 (3d Cir. 2002). Since Brown stipulated that the firearm was manufactured outside of Pennsylvania, this element of § 922(g) was satisfied. Second, the applicable statutory maximum was dictated by 18 U.S.C. § 924(e), the so-called “Armed Career Criminal Act, ” based on Brown’s prior criminal record. Section 924(e) authorizes a term of life imprisonment, so a sentence of 270 months was appropriate.[3] Brown’s fair trial argument rested on two subclaims: testimony about his multiple aliases tainted the jury, and the prosecutor delivered an improper summation. The panel found that the testimony and the closing arguments were proper, and thus neither infringed on Brown’s right to a fair trial. Id. at 345. The Third Circuit refused to rehear the case en banc on June 25, 2003. See General Docket, United States v. Brown, 01-2150 (3d Cir.). Brown’s petition to the Supreme Court for a writ of certiorari was denied on April 19, 2004. (Id.)

Having worked his way through the post-trial and direct appeals process, Brown filed a § 2255 motion on August 31, 2004.[4] My decision on the motion is set out at United States v. Brown, No. 99-730, 2005 WL 1532538 (E.D. Pa. June 28, 2005), but I will summarize it here. Brown first argued that his arrest by PHA officers outside the PHA’s territorial limits was illegal and thus the firearm should not have been admitted into evidence under the Fourth Amendment. Furthermore, trial and appellate counsel were ineffective for not raising this argument. I denied the Fourth Amendment claim as procedurally defaulted. The claim was also meritless, so I found trial and appellate counsel were not ineffective for failing to raise it.

Brown raised a speedy trial claim under the Speedy Trial Act, the Fifth Amendment, and the Sixth Amendment. I found these claims to be procedurally defaulted. He claimed that trial and appellate counsel were ineffective for not raising these arguments. Again, because the claims were also substantively meritless, neither counsel was ineffective.

Brown argued that his indictment was deficient because it was not signed by the grand jury foreperson. This claim was procedurally defaulted, and in any case, factually wrong. I also rejected Brown’s argument that appellate counsel was deficient for failing to raise this claim.

Finally, Brown raised a bevy of other trial counsel and appellate counsel ineffectiveness claims, most of which I rejected. He argued that trial counsel was ineffective for failing to interview and/or call three eyewitnesses: Devine, Holloway, and Andre Williams.[5] I found that the proposed testimony of Devine would have made no difference in Brown’s trial and that counsel had no reason to know about Holloway. However, trial counsel had taken Williams’s statement, and his account undermined Johnson’s testimony that he saw Brown standing on the street with a handgun. The ineffectiveness claim based on Williams was not obviously futile, so I ordered an evidentiary hearing on this claim alone.

Brown further argued that trial counsel was deficient for failing to call Officer Boyle as a witness; failing to call Brown’s ex-fiancee to testify to alleged police coercion; stipulating to the interstate commerce requirement of § 922(g)(1); failing to object to evidence of Brown’s prior bad acts; failing to personally examine Officer Johnson’s disciplinary files; filing for continuances that “waived” Brown’s speedy trial rights; failing to object to the absence of African-American males on the jury venire; failing to visit Brown in jail; failing to object to Johnson’s testimony that suggested Brown was involved in additional criminal activity; failing to object to Brooks’s reference to Brown’s use of an alias upon arrest; failing to object to Brooks’s testimony about Brown’s post-arrest statements based on Miranda; failing to object when Brooks improperly vouched for Boyle; failing to object to improper expert testimony by Brooks; representing defendant while influenced by an “actual conflict of interest”; failing to act as an advocate; cajoling defendant not to testify; and failing to object to the prosecution’s improper summation. Brown also contended that appellate counsel was ineffective because he failed to develop an adequate record on appeal, apparently in an effort to protect trial counsel’s reputation. I rejected these claims as either factually contradicted by the record, mistaken on the law, or indicative of counsel’s sound trial strategy.

Brown’s § 2255 motion also heavily focused on radio transmissions between PHA officers and PHA radio dispatch during his pursuit. Brown asserted that trial counsel was ineffective because he failed to request a recording of the transmissions; he failed to make a Brady claim in connection with the recording; and he failed to object to the authenticity of the recording played at trial. However, counsel had obtained a copy of the recording: he introduced it into evidence in support of defendant’s case. Therefore, there was no reason to challenge its authenticity. Brown’s Brady argument was predicated on a discrepancy between the recording and police radio logs. The radio logs showed that the officers sent their first transmission at 9:39 p.m., yet the first tape entry was made at 9:42 p.m. But there was no indication that a recording of this three-minute gap ever existed. The government could not commit a Brady violation by suppressing evidence it did not possess.[6]

Thus, I granted Brown an evidentiary hearing on his claim that trial counsel was ineffective for failing to call Williams as a witness, and I denied the rest of his motion, in an order dated June 28, 2005.

After my order, Brown supplemented his § 2255 motion. (ECF 119.) This supplement dealt with the transcript of the PHA dispatch tape—long a bone of contention for Brown. On April 2, 2004, he filed for a “complete and entire transcript of audio dispatch tape used at his trial, in order to perfect his 2255 motion.” (ECF 88.) I ordered that the government send the transcript to Brown or else advise the court if it was unable to do so. (ECF 89.) On June 15, 2005, the government responded by letter to the court and to Brown, enclosing a two-page transcript that it represented was the transcript of the tape. This transcript had been provided to trial counsel; it was limited to transmissions from Boyle and Johnson. (See ECF 165, at 16.) On June 16, 2005, Brown requested “a complete copy of PHA police’s dispatch tape used at trial” in order to verify that the tape and the transcript matched. (ECF 114.) On June 28, 2005, I ordered the government to provide Brown with a copy of the dispatch tape, provided it was still available. (ECF 117.)

Armed with the two-page transcript, Brown argued in his supplement that trial counsel was ineffective for agreeing to a stipulation—read to the jury—that described the PHA radio transmissions and explained that three minutes of the transmissions were missing. The first transcribed transmission was sent at 9:42 p.m. Brown argued that the content of the transmission, as revealed by the transcript, indicated that the transmission at 9:42 p.m. was the initial transmission having to do with his pursuit. Therefore, counsel was mistaken when he stipulated that there were unrecorded transmissions pertaining to Brown between 9:39 p.m. and 9:42 p.m. (ECF 119.)

The government responded to the supplement on July 27, 2005. (ECF 122.) In an effort to rebut Brown’s argument about the erroneous stipulation, the government attached two exhibits to its response: the PHA radio dispatch log and a transcript of the recording provided by PHA. This transcript, however, differed from the excerpted two-page transcript provided to Brown—it was longer, totaling nineteen pages, and included transmissions from sources other than Johnson and Boyle (hereinafter, the “full RDT”). This full RDT would become the basis of numerous filings by Brown (including the instant motion, as discussed below).

I appointed Brown a series of attorneys for his evidentiary hearing, and the task eventually fell to George H. Newman, Esquire. The evidentiary hearing was held on November 15, 2005, and January 10, 2006. On October 18, 2006, I denied the remaining ineffectiveness claims. I found that trial counsel, “having reservations about the credibility Williams’s account and fearing the government’s impeachment of Williams, decided against calling Williams as a witness . . . .” 2006 WL 3000960, at *6. I rejected the supplemental claim: “Brown cannot meet the burden of overcoming the presumption that trial counsel’s stipulation might be considered sound trial strategy falling ...


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