Brown v. United States of America, No. 3:2018cv01411 - Document 12 (N.D. Tex. 2022)
Court Description: ***PLEASE DISREGARD; FILED IN INCORRECT CASE.*** MEMORANDUM OPINION AND ORDER denying 3 request to appoint counsel. Treating the motion as a successive 28 U.S.C. § 2255 motion, the court transfers the motion to the United States Court o f Appeals for the Fifth Circuit to seek authorization to file a successive § 2255 motion. The court directs the clerk of court to open for statistical purposes a new civil action (nature of suit 510 with direct assignment, per Special Order 3-250, to the undersigned and Magistrate Judge Toliver) and to effect the transfer in the newly opened case. (Ordered by Senior Judge Sidney A Fitzwater on 3/28/2022) (jmg) Modified on 3/29/2022 (jmg).
Download PDF
<![CDATA[
Brown v. United States of America Doc. 12 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION VINCENT DEON BROWN, Movant, VS. UNITED STATES OF AMERICA, Respondent. § § § § § § § § § CIVIL NO. 3:18-CV-1411-D (CRIMINAL NO. 3:15-CR-543-D(2)) MEMORANDUM OPINION AND ORDER Vincent Deon Brown’s (“Brown’s”) March 22, 2022 letter request to appoint counsel is denied without prejudice. Treating the motion as a successive 28 U.S.C. § 2255 motion, the court transfers the motion to the United States Court of Appeals for the Fifth Circuit to seek authorization to file a successive § 2255 motion. I Brown pleaded guilty to interference with commerce by robbery (Hobbs Act robbery), in violation of 18 U.S.C. § 1951(a), and using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A), and predicated on the underlying Hobbs Act robbery. In 2017 Brown was sentenced to a total term of 177 months’ imprisonment—57 months for the Hobbs Act robbery and a consecutive 120 months for using and carrying a firearm His direct appeal was unsuccessful. United States v. Brown, 711 Fed. Appx. 244 (5th Cir. 2018) (per curiam). Subsequently, Brown filed a motion requesting appointment of counsel to explore whether he was entitled to post-conviction relief under Sessions v. Dimaya, ___ U.S. ___, 138 S. Ct. 1204 (2018). The motion was construed as a § 2255 motion, but it was dismissed without prejudice for want of prosecution. Brown v. United States, No. 3:18-CV-1411-D (N.D. Tex. Jan. 29, 2019). Dockets.Justia.com In 2019 Brown filed a § 2255 motion, asserting that his § 924(c) conviction was invalid under United States v. Davis, ___ U.S. ___, 139 S. Ct. 2319 (2019). His conviction was predicated, however, on a substantive Hobbs Act robbery, which qualified as a crime of violence. Thus his § 2255 motion was denied. Brown v. United States, No. 3:19-CV-1842-D (N.D. Tex. Dec. 17, 2019). In 2020 Brown sought appointment of counsel, asserting generally that a “new law ha[d] come into effect.” The court denied his motion. And treating it as a successive § 2255 motion, the court dismissed it without prejudice to Brown’s seeking authorization to file a successive § 2255 motion. Brown v. United States, No. 3:20-CV-0690-D (N.D. Tex. Mar. 20, 2020). Brown now seeks appointment of counsel to assist him in filing a successive § 2255 motion seeking relief under Borden v. United States, ___ U.S. ___, 141 S. Ct. 1817 (2021). II Generally, a defendant is not entitled to appointment of counsel in a post-conviction relief proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Under the Criminal Justice Act, 18 U.S.C. § 3006A(a)(2)(B), however, a district court may appoint counsel for a § 2255 movant who is financially eligible if the court determines that “the interests of justice so require.” United States v. Davis, 629 Fed. Appx. 613, 619 (5th Cir. 2015) (per curiam). The decision whether to appoint counsel is within the discretion of the district court. Id. Because Brown has not yet filed a § 2255 motion, he has not alleged, much less shown, that the interests of justice require appointment of counsel at this stage. See United States v. Duc Minh Luu, 2015 WL 1515187, at *2 (N.D. Tex. April 1, 2015) (Horan, J.) (“Defendant has not yet filed a 28 U.S.C. § 2255 motion, and, as such, the Court is not in a position to examine . . . the significance or complexity of his claims.”). Brown asserts only that he is ignorant of the law. He -2- does not aver that he cannot prepare a § 2255 motion himself. The court therefore denies his motion to appoint counsel. III The proper vehicle for challenging a criminal conviction after the direct appeal period has expired, as in this case, is a motion to vacate sentence under § 2255. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001) (per curiam). Brown’s prospective Borden claim collaterally challenges his conviction and sentence. And is therefore properly raised by a § 2255 motion. Cf. United States v. Elam, 930 F.3d 406, 410 (5th Cir. 2019) (requiring that district court liberally construe a pro se motion for discovery and appointment of counsel as a first, timely § 2255 motion to provide the defendant “the protections of the Great Writ”). “Ultimately, ‘[i]t is the substance of the relief sought by a pro se pleading, not the label that the petitioner has attached to it, that determines the true nature and operative effect of a habeas filing.’” Id. at 409 (quoted case omitted). But before Brown can pursue § 2255 relief, he must first obtain authorization from the United States Court of Appeal for the Fifth Circuit under 28 U.S.C. § 2244(b)(3). See, e.g., United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000) (per curiam) (§ 2244(b)(3)(A) constitutes a jurisdictional bar unless the court of appeals first grants permission to file a successive motion). The court finds it appropriate to construe Brown’s request for relief under Borden as a successive § 2255 motion and transfer it to the Fifth Circuit for appropriate action. See Henderson v. Haro, 282 F.3d 862, 864 (5th Cir. 2002); In re Epps, 127 F.3d 364, 365 (5th Cir. 1997) (per curiam). -3- * * * Accordingly, Brown’s motion to appoint counsel is denied without prejudice. Treating the motion as a successive § 2255 motion, the court transfers it to the United States Court of Appeals for the Fifth Circuit to seek authorization to file a successive application. See 28 U.S.C. § 2255(h); 28 U.S.C. § 2244(b)(3). The court directs the clerk of court to open for statistical purposes a new civil action (nature of suit 510 with direct assignment, per Special Order 3-250, to the undersigned and Magistrate Judge Toliver) and to effect the transfer in the newly opened case. SO ORDERED. March 28, 2022. _________________________________ SIDNEY A. FITZWATER SENIOR JUDGE -4-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
