United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSEN STENGEL United States District Judge
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). For the reasons
set forth below, the motion is denied.
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.
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.
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.
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
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[.]
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
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).
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. 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.
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
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
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
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 ...