USA v. Brian Keith Brim, No. 2:1999cv02201 - Document 53 (C.D. Cal. 2013)
Court Description: ORDER DENYING PETITIONERS MOTION UNDER 28 U.S.C. 2255(f)(3) TO VACATE SENTENCE BY A PERSON IN FEDERAL CUSTODY, DENYING MOTION FOR APPOINTMENT OF COUNSEL, DENYING REQUEST FOR CORRECTIVE JUDGMENT WITHOUT PREJUDICE; GRANTING RULE 36 MOTION, AND REOPENING TIME TO FILE AN APPEAL. Petitioner may file a notice of appeal within 30 days of this Order 49 , 50 by Judge Dean D. Pregerson . (lc). Modified on 7/19/2013 (lc).
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USA v. Brian Keith Brim Doc. 53 1 2 O 3 4 CLOSED 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRIAN KEITH BRIM, 12 13 Plaintiff, v. 14 UNITED STATES OF AMERICA, 15 Defendant. 16 17 ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) Case Nos. [CV 12-08107 DDP] CV 99-02201 DDP T [SA CR 93-00098 LHM] ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255(f)(3) TO VACATE SENTENCE BY A PERSON IN FEDERAL CUSTODY, DENYING MOTION FOR APPOINTMENT OF COUNSEL, DENYING REQUEST FOR CORRECTIVE JUDGMENT, GRANTING RULE 36 MOTION, AND REOPENING TIME TO FILE AN APPEAL 18 19 Before the court are Petitioner’s Motion Under 28 U.S.C. § 20 2255(f)(3) to Vacate . . ., Motion for Appointment of Counsel, 21 Motion for Corrective Judgment, Motion Pursuant to Rule 36, and 22 Motion for Order Reopening Time to File Appeal. 23 Petitioner’s submissions, the court adopts the following order. 24 Having considered The lengthy background of this case is set forth in detail in 25 the October 21, 2002, Report and Recommendation of United States 26 Magistrate Judge denying Petitioner Brian Keith Brim’s Motion to 27 Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. 28 The court adopted the Magistrate Judge’s Report and Recommendation Dockets.Justia.com 1 and entered judgment denying Petitioner’s § 2255 Motion with 2 prejudice on November 24, 2003. 3 On July 11, 2007, Petitioner filed a purported application for 4 writ of habeas corpus pursuant to 28 U.S.C. § 2241. 5 February 5, 2008, this court held that the application was properly 6 construed as another motion to vacate Petitioner’s conviction, and 7 therefore denied it as an untimely and successive § 2255 motion. 8 9 However, on On May 16, 2011, Petitioner filed a Motion to Reopen his initial § 2255 Motion pursuant to Federal Rule of Civil Procedure 10 60(b) (“Rule 60(b)”). 11 a Motion pursuant to Federal Rule of Criminal Procedure 36 (“Rule 12 36”), asking the court to hold his Rule 60(b) Motion in abeyance 13 and instead correct an alleged clerical error in the Magistrate 14 Judge’s Report and Recommendation. 15 construing them as third and fourth requests for relief under § 16 2255. 17 Petitioner then filed, on January 23, 2012, This court denied both Motions, On September 20, 2012, Petitioner filed a Motion to Vacate, 18 Set Aside or Correct Sentence by a Person in Federal Custody, and 19 on December 18, 2012, filed a Motion for Appointment of Counsel, 20 presently before the court. 21 Request for Corrective Judgment, also presently before the court. 22 I. § 2255 Motion 23 On April 11, 2013, Petitioner filed a Petitioner now files a fifth request for relief under § 2255. 24 He argues that under two recent Supreme Court cases, Missouri v. 25 Frye, 132 S. Ct. 1399 (2012) and Lafler v. Cooper, 132 S. Ct. 1376 26 (2012), his trial counsel’s failure to timely convey a written 27 government plea offer before the expiration date of the plea offer 28 deprived him of effective assistance of counsel and actually 2 1 prejudiced him. 2 appropriate if it contains “a new rule of constitutional law, made 3 retroactive to cases on collateral review by the Supreme Court, 4 that was previously unavailable.” 5 second or successive motion must also be “certified . . . by a 6 panel of the appropriate court of appeals,” 28 U.S.C. § 2255(h). 7 In the absence of such certification, the court DENIES the Motion 8 without prejudice. 9 II. Request for Corrective Judgment 10 A second or successive § 2255 petition is 28 U.S.C. § 2255(h). However, a It appears to the court that this Request constitutes a sixth 11 request for relief under § 2255. 12 court, this Motion has not been certified by a panel of the court 13 of appeal and the court must therefore deny it. 14 Motion before the court, this Motion does not purport to contain 15 newly discovered evidence or a new rule of constitutional law which 16 would justify a successive motion. 17 arguments pertaining to the quantity of PCP involved in the 18 offense, which Petitioner made in previous § 2255 motions and which 19 have already been rejected by the court and the Court of Appeals. 20 See Order Denying Petitioner’s Motions to Reopen and to Correct 21 Clerical Error, 99-CV-02201-DDP-MLG. 22 Brim, 148 Fed. Appx. 619, 621 (9th Cir. 2005)(“[T]he failure to 23 research the drug purity and discover a possible lower minimum 24 offense level did not affect the sentencing range of 360 months to 25 life offered in the plea agreement.”) The court DENIES the Request. 26 III. Appointment of Counsel 27 28 Like the § 2255 Motion before the Unlike the § 2255 This Motion appears to repeat See also United States v. There is no constitutional right to appointment of counsel in federal or state habeas corpus proceedings. 3 See McCleskey v. Zant, 1 499 U.S. 467, 495 (1991); United States v. Angelone, 894 F.2d 1129, 2 1130 (9th Cir. 1990). 3 district court may provide representation to any financially 4 eligible person whenever “the court determines that the interests 5 of justice so require.” 6 district court must evaluate the likelihood of success on the 7 merits as well as the ability of the petitioner to articulate his 8 claims pro se in light of the complexity of the legal issues 9 involved.” Pursuant to 18 U.S.C. § 3006A(a)(2)(B), the In exercising its discretion, “the Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 10 The Ninth Circuit has held that “indigent state prisoners applying 11 for habeas corpus relief are not entitled to appointed counsel 12 unless the circumstances of a particular case indicate that 13 appointed counsel is necessary to prevent due process violations.” 14 Chaney v Lewis ,801 F.2d 1191, 1196 (9th Cir. 1986). 15 Petitioner states that “it is in the interest of justice that 16 counsel be assigned.” 17 appointment of counsel is not necessary to avoid due process 18 violations in this case, and the interests of justice do not 19 require appointment of counsel. 20 his grounds clearly in his petition and make cogent arguments in 21 support of his petition. 22 appointment of counsel is DENIED without prejudice. 23 IV. Rule 36 Motion 24 The court finds that at this time the Petitioner was able to articulate Accordingly, petitioner’s request for Petitioner argues that he was charged $150 as a special 25 assessment in the underlying criminal case but should only have 26 been charged $50. 27 constitute multiple punishments for the same act. He asks the court He argues that the three special assessments 28 4 1 to correct the assessment under Rule 36 of the Federal Rules of 2 Criminal Procedure. 3 Petitioner was convicted on three counts: (1) conspiracy to 4 manufacture PCP, (2) possession of PCC with intent to manufacture 5 PCP, and (3) intent to manufacture PCP. 6 his conviction on the conspiracy count, but vacated and stayed the 7 convictions and sentences on the other two counts: The Ninth Circuit affirmed 8 [In a previous case, the Ninth Circuit held that] although the 9 defendant was properly charged and tried on separate counts 10 for each step in the manufacturing process, he could be 11 convicted and sentenced for only one. . . . 12 punishments for attempt and for conspiracy under § 846 are not 13 permissible when only one criminal undertaking is involved. 14 Because the possession, attempt, and conspiracy here [in 15 Petitioner’s case] were clearly all parts of one criminal 16 undertaking, the district court should have sentenced Brim on 17 only one of the counts. Cumulative 18 United States v. Brim, 129 F.3d 128 (9th Cir. 1997)(internal 19 citations and quotation marks omitted). The Ninth Circuit thus 20 vacated the judgments of conviction and the sentences on two counts 21 and ordered their entries stayed pending completion of the sentence 22 on the first count. 23 Petitioner cites Rutledge v. United States, 517 U.S. 292 24 (1996), which held that special assessments are considered to be 25 punishments and that it is inappropriate to impose two assessments 26 on two convictions when one of them is a lesser included offense. 27 In Rutledge, a petitioner who had been found guilty of 28 participating in a conspiracy to distribute controlled substances 5 1 and also of conducting a criminal enterprise was improperly 2 sentenced to concurrent life sentences for the two charges because 3 one was a lesser included offense of the other; although the 4 sentences were served concurrently, the special assessment of $50 5 on the second conviction meant that the conviction amounted to a 6 second punishment for the same activity. 7 The court finds that Petitioner’s situation is similar. Given 8 that the Ninth Circuit vacated the judgments of conviction and 9 sentences on two of three counts because all three counts were part 10 of one criminal undertaking, imposing a separate assessment upon 11 each of the three counts would likewise constitute multiple 12 punishments for the same criminal undertaking. 13 GRANTS the Rule 36 Motion and orders that the assessment be reduced 14 from $150 to a total of $50. 15 V. Motion to Reopen Time to File Appeal 16 The court therefore Good cause being shown, the court GRANTS Petitioner’s Motion 17 to Reopen Time to File Appeal of this court’s order denying 18 petitioner’s Rule 60(b) Motion on September 14, 2012. 19 may file a notice of appeal within 30 days of this Order. 20 VI. Conclusion Petitioner 21 For the reasons stated above, the petitioner’s Motion under § 22 2255, Motion for Appointment of Counsel, and Motion for Corrective 23 Judgment are DENIED without prejudice. 24 and Motion to Reopen Time to File Appeal are GRANTED. 25 IT IS SO ORDERED. Petitioner’s Rule 36 Motion 26 27 Dated: July 19, 2013 DEAN D. PREGERSON United States District Judge 28 6
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