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Brown v. United States

United States District Court, S.D. Illinois

March 9, 2017

JAMES EARL BROWN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          NANCY J. ROSEN STENGEL United States District Judge

         This matter comes before the Court on Petitioner James Earl Brown's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1).[1] For the reasons set forth below, the motion is denied.

         Background

         Underlying Criminal Case

         On September 24, 1998, James Earl Brown pleaded guilty to charges of conspiracy to distribute cocaine base (Count 1), distribution of cocaine base (Count 19), and felon in possession of a firearm (Count 20). United States v. James E. Brown, SDIL Case No. 97-cr-30089-13, Docs. 381, 382. He was sentenced on January 12, 1999, by District Judge William Stiehl to a total of 262 months' imprisonment and five years' supervised release.

Id. at Doc. 418, 421.

         Brown was released from prison and began his term of supervised release on January 4, 2011. SDIL Case No. 97-cr-30089-13, see Doc. 909. In October 2012, Brown's probation officer filed a petition to revoke his supervised release based on numerous violations. Id. at Docs. 909, 924. The most substantial violations included possession of a firearm by a felon; possession of a controlled substance; and possession of a controlled substance with intent to distribute. Id. at Docs. 924, 976.

         A revocation hearing was held on October 31, 2012, and Brown admitted to some of the violations and did not contest the others. SDIL Case No. 97-cr-30089-13, Docs. 926, 976. Judge Stiehl found Brown guilty of all the violations and ordered his supervised release be revoked. Id. at Doc. 926. Brown was sentenced to a total of 72 months' imprisonment. Id. Specifically, he was sentenced to sixty months as to Count 1, twelve months as to Count 19, and twelve months as to Count 20. Id. The twelve-month sentences were to run concurrent to each other and consecutive to the sixty-month sentence. Id.

         § 2255 Proceedings

         Brown filed his § 2255 petition on November 3, 2013 (Doc. 1). Brown's only argument is that Dan Cronin, his attorney at the revocation hearing, provided ineffective assistance when he failed to file a notice of appeal after Brown requested that he do so (Doc. 1). Brown supported his petition with a short affidavit (Doc. 1-1). That affidavit states, in pertinent part:

That during the revocation proceedings, of my Supervised Release, I was represented by attorney Daniel G. Cronin; That immediately following sentencing, I specifically requested attorney Cronin to appeal the sentence; That I renewed this request upon receiving a[n] October 31, 2012 Memorandum from attorney Cronin, regarding the appeal; That I fully understood that an appeal would be filed; That in late August, I learned that no appeal had been filed; I learned this fact through the Inmate Legal Law Library where I requested assistance in learning the status of my appeal; That I immediately sought assistance in the filing of [a § 2255] motion to regain my rights to appeal[.]

         The Government filed a response to Brown's petition on December 17, 2013, and addressed his claim on the merits (Doc. 4). Attached to the Government's response was an affidavit from Dan Cronin, who expressly denies that Brown ever asked him to file an appeal (Doc. 4-2). Mr. Cronin's affidavit states, in pertinent part:

I did not file a Notice of Appeal, because Mr. Brown never asked me to.
Mr. Brown's claim “That immediately following sentencing, I specifically requested attorney Cronin to appeal the sentence . . .” is untrue. The minutes on Petition to Revoke Supervised Release indicate that the hearing ended at 11:15 a.m. However, later that afternoon, undersigned counsel sent Mr. Brown a two-page letter on a possible appeal. A copy of that letter, which was last modified at 3:13 p.m. on October 31, 2012, is attached to this Declaration Under Penalty of Perjury. Among other points, that letter asks Mr. Brown, “If you want me to file a Notice of Appeal on your behalf - or if you have any questions about a possible appeal - please let me know immediately.”
Mr. Brown's claim “that I renewed this request upon receiving a October 31, 2012 Memorandum from attorney Cronin, regarding the appeal . . . “ is also untrue. To clarify, Mr. Brown received the October 31, 2012 letter sometime after November 20, 2012, because by the time the earlier letter arrived at the Clinton County Jail, Mr. Brown had been transferred to the Bureau of Prisons. Undersigned counsel was unaware of that fact until the October 31, 2012 letter was returned as undeliverable on November 19, 2012. Attached to this Declaration Under Penalty of Perjury is a letter dated November 20, 2012 from undersigned counsel to Mr. Brown, explaining this sequence of events.
At no time did James Earl Brown ask for an appeal from his revocation case. Furthermore, at no time did Mr. Brown indicate to undersigned counsel that he thought an appeal had been filed, e.g., by asking for a copy of a Notice of Appeal or appellate brief.

(Doc. 4-2, Doc. 4-3, Doc. 4-4).

         Brown filed a reply brief on January 13, 2014, asserting the Court must hold an evidentiary hearing to resolve the conflict between his and Mr. Cronin's affidavits (Doc. 5). After reviewing the parties' submissions, however, the Court determined that the allegations in Brown's affidavit were too vague and conclusory to make the threshold evidentiary showing necessary to warrant an evidentiary hearing.[2] Brown was offered a chance to fill in the gaps in his allegations with specific details about his requests to Dan Cronin so that the Court could properly evaluate his allegations and determine whether a full evidentiary hearing was necessary or proper (Doc. 19).[3] The Court thought the quickest and most prudent way to get these facts from Brown was to speak to him in person, as opposed to having him file a supplemental affidavit or having him answer written interrogatories propounded by the Court (Doc. 19).

         To that end, Brown appeared before the Court via video on February 14, 2017 (Docs. 25, 27). The Court first probed into Mr. Brown's assertion that he asked Dan Cronin to file an appeal “immediately following sentencing.”

Court: So tell me as far as immediately after the sentencing, when and where did you make the request for Mr. Cronin to file the notice of appeal?
Brown: Well, to the best of my recollection, it was two or three days after I had got sentenced. I was in Clinton County jail in the Southern District of Illinois. I called his office. We talked for a few minutes. And I advised him to file an appeal for me, and I thought I had it filed.
Court: Was anyone around who may have heard you make this request?
Brown: No because don't have nobody in my business like that. I called on the phone that they use the pay card with.
Court: Okay. And what did you say to Mr. Cronin at that time?
Brown: Well, he talked to me about some things as far as-as far as the sentencing goes. And he advised me that I could appeal, you know, he thought that I should appeal, and he explained some things to me about appealing and ...

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