United States District Court, W.D. Arkansas, Texarkana Division
F. Barnes, United States District Judge
the Court is the Report and Recommendation filed January 24,
2017, by the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas. (ECF
No. 286). Judge Bryant recommends that Movant Brian
Brown's Motion to Reconsider Judgments by this Court (ECF
No. 285) is properly construed as a motion seeking relief
pursuant to 28 U.S.C. § 2255, and thus should be denied
as a second or successive section 2255 motion filed without
permission from the United States Court of Appeals for the
Eighth Circuit. Brown filed objections to the Report and
Recommendation. (ECF No. 290). The Court finds the matter
ripe for consideration.
is currently serving concurrent terms of life in prison after
being found guilty by a jury of kidnapping and aggravated
sexual abuse of a child in violation of 18 U.S.C.
§§ 1201(a)(1) and 2241(c). On June 9, 2003, the
Eighth Circuit affirmed Brown's convictions. See
United States v. Brown, 330 F.3d 1073 (8th Cir. 2003).
On February 23, 2004, Brown filed a motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255. (ECF No. 106). On July 13, 2006, the Court adopted a
Report and Recommendation denying the motion. (ECF No. 193).
Brown appealed, and on August 20, 2008, the Eighth Circuit
affirmed the Court's order denying relief. (ECF No. 215).
On March 22, 2011, Brown filed a motion styled “Motion
to Correct an Illegal Sentence That Violates Ex Post Facto
Clause Fed. R. Crim. Proc. Rule 35 (2001).” (ECF No.
253). On January 3, 2012, the Court adopted a Report and
Recommendation construing the motion as a successive motion
seeking relief pursuant to section 2255 filed without
permission from the Eighth Circuit, and denying the motion.
(ECF No. 278).
also filed a Petition for Mandamus with the Eighth Circuit on
June 29, 2011. (ECF No. 269). The Eighth Circuit construed
the petition as a request to file a successive motion
pursuant to section 2255 and denied the petition. (ECF No.
8, 2011, the Court entered an order noting that Brown has
filed numerous meritless pleadings in this Court, and that he
continues to file motions styled with various headings that
constitute successive habeas corpus petitions. (ECF No. 262).
The Court noted that successive habeas petitions require a
Certificate of Appealability from the Court of Appeals. The
Court ordered that Brown must obtain leave of this Court or
permission from the Court of Appeals before filing any
additional pleadings in this matter.
September 26, 2016, Brown attempted to file a motion styled
“Motion to Reconsider Judgments by this Court that have
been Effected by the Supreme Court of the United
States.” (ECF No. 285). Brown did not attempt to obtain
leave of this Court or the Eighth Circuit before filing the
motion, but through an error of the Court, the motion was
filed. Although the Court's June 8, 2011 order
restricting Brown's filing ability was in effect at the
time Brown's motion was filed, the Court will nonetheless
consider Brown's motion.
motion, Brown raises four issues: (1) that the judgment and
sentence in this case violates the Constitution and is
otherwise subject to collateral attack; (2) that he should be
allowed to “retest” certain evidence admitted at
the original trial of his criminal case; (3) that the United
States Supreme Court's recent decision in Welch v.
United States provides for collateral review of his
judgment and sentence; and (4) that the Court improperly
calculated his sentence range under the United States
Sentencing Guidelines in several ways. (ECF No. 285-1). The
instant Report and Recommendation finds that each of these
issues was previously considered by this Court and that each
of the issues is an attack on Brown's sentence and thus
should be construed as a motion to vacate pursuant to section
2255. The Report and Recommendation concludes that
Brown's motion is a “successive motion”
within the meaning of 28 U.S.C. § 2255(h), and
recommends that the motion should be denied.
April 3, 2017, Brown filed objections to the Report and
Recommendation. Brown's objections are not responsive to
the Report and Recommendation and offer no error of fact or
law from which the Court finds it necessary to depart from
the Report and Recommendation.Accordingly, the Report and
Recommendation is adopted in toto. Movant's
motion (ECF No. 285) is hereby DENIED.
Court wishes to stress that on June 8, 2011, the Court
entered an order stating that Brown must first seek and
obtain leave of this Court or permission from the Court of
Appeals before filing any additional pleadings with the Court
involving this matter. (ECF No. 262). The Court's error
in allowing the instant motion to be filed does not change
this, and the June 8, 2011 order-and its restrictions on
Brown's filing ability-remain in effect.
 Brown's objections argue at length
that a writ of mandamus must issue in this case because
habeas petitions pursuant to section 2255 and relief under
Rule 60(b) are unavailable to him in this matter, and because
the Court's June 8, 2011 order unconstitutionally
suspends his ability to pursue the same. The Court notes that
on March 22, 2017, Brown filed with the Eighth Circuit a
petition for a writ of mandamus containing nearly identical
arguments and language to that found in Brown's
objections to the ...