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United States v. Brown

April 27, 2007

UNITED STATES OF AMERICA
v.
MARLIN LYNN BROWN



The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge

ORDER

Pending are Petitioner's Motions to Vacate Under 28 U.S.C. § 2255 (Doc. Nos. 111, 112) and Motion to Appoint Counsel (Doc. No. 113).

I. BACKGROUND

A jury convicted Petitioner of armed bank robbery, brandishing a firearm during a crime of violence, and felon in possession of a firearm. On March 19, 2004, Petitioner was sentenced to 346 months in prison. Petitioner filed an appeal and the Eighth Circuit Court of Appeals affirmed the judgment on May 24, 2005.*fn1 Petitioner did not seek a writ of certiorari.

Petitioner submitted a letter to the Court on September 18, 2006, which was docketed as a First Motion to Vacate Under 28 U.S.C. § 2255.*fn2 He also filed a Second Motion to Vacate Under § 2255 on November 1, 2006.*fn3

II. DISCUSSION

A. Second Motion to Vacate

There is a one-year status of limitations for actions brought under 28 U.S.C. § 2255.*fn4

Since the Eight Circuit Court of Appeals issued its judgment on May 24, 2005 and Petitioner did not petition the Supreme Court for a writ of certiorari, his one-year period to file a § 2255 motion began on August 24, 2005 and expired on August 24, 2006.

The Second Motion to Vacate Under § 2255 was filed outside the statute of limitations,

B. First Motion to Vacate

The First Motion to Vacate Under 28 U.S.C. § 2255, although not received until August 28, 2006, is dated August 23, 2006. Therefore, I will consider the motion timely filed, and address the merits.

In his First Motion to Vacate, Petitioner conveys a narrative explaining his take on the events that occurred surrounding the bank robbery for which he was convicted and events that have occurred since that time. Petitioner asserts that a Mr. James Fairchild, now deceased, committed the crime; so, it appears that Petitioner is asserting a claim of actual innocence.

To establish a claim of actual innocence, Petitioner must "'support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial,' and demonstrate 'it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.'"*fn5 Additionally, "a party generally cannot demonstrate actual innocence where there is sufficient evidence to support a conviction."*fn6 Plaintiff has failed to meet his burden, since he neither has ...


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