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United States v. Brewer

United States District Court, D. Arizona

September 25, 2019

United States of America, Plaintiff/Respondent,
v.
Steven Brewer, Defendant/Movant.

          REPORT AND RECOMMENDATION

          HONORABLE DEBORAH M. FINE, UNITED STATES MAGISTRATE JUDGE

         TO THE HONORABLE NEIL V. WAKE, SENIOR U.S. DISTRICT JUDGE:

         Steven Brewer (“Movant”) is an inmate detained at the Seagoville, Texas Federal Correctional Institution. On March 19, 2019, [1] he filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (“§ 2255 Motion”) asserting nine claims for relief. (Doc. 1)[2] Pending before the Court is Respondent's Motion to Dismiss Defendant's Motion Under 28 U.S.C. § 2255 filed on June 28, 2019. (Doc. 6) Movant filed a response and attachments. (Docs. 10, 14) Respondent filed a reply. (Doc. 16) Movant then filed a surreply to the Respondent's reply. (Doc. 17) For the reasons set forth below, undersigned recommends that the Court grant Respondent's motion to dismiss Movant's § 2255 Motion with prejudice.

         I. BACKGROUND

         A. Movant's convictions and sentence

         After a trial by jury, Movant was found guilty of one count of conspiracy to commit wire fraud and money laundering, six counts of wire fraud, and twenty-one counts of money laundering, in violation of 18 §§ U.S.C. 371, 1343, and 1957(a), respectively. (CR Doc. 813 at 1, 4) On March 30, 2015, the Court sentenced Movant to a 188-month term of imprisonment followed by three years of supervised release. (Id.)

         B. Movant's direct appeal

         Movant and his co-defendants appealed their convictions, arguing District Judge Wake: (1) erred when he denied the defendants' motions for acquittal; (2) abused his discretion when conducting voir dire; (3) abused his discretion by allowing the prosecution to impeach Movant with his prior conviction; (4) abused his discretion by admitting summary charts detailing the disposition of the victim's money; (5) erred when questioning witnesses, including Movant; (6) erred when instructing the jury on Pinkerton liability using Ninth Circuit Model Criminal Jury Instruction 8.25; (7) erred in giving a money laundering jury instruction; and (8) abused his discretion in denying Movant's co-defendant's motion to sever. United States v. Kirby, 692 Fed.Appx. 334, 336-38 (9th Cir. 2017). The Ninth Circuit affirmed. Id.

         Movant filed a petition for writ of certiorari which the United States Supreme Court denied on January 8, 2018. Brewer v. United States, 138 S.Ct. 688 (Jan. 8, 2018). Movant then filed a petition for rehearing with the Supreme Court, which the Court denied on March 26, 2018. Brewer v. United States, 138 S.Ct. 1346 (Mar. 26, 2018). . . .

         C. Procedural history of the § 2255 Motion

         On initial screening of the § 2255 Motion, District Judge Wake ordered dismissal of Grounds One, Four, and Nine and ordered Respondent to answer the remaining six grounds, which asserted claims of ineffective assistance of trial and/or appellate counsel. (Doc. 3, Doc. 1 at 25-26) Respondent then filed a motion for an order requiring Movant to execute a limited waiver of the attorney-client privilege as to his claims of ineffective assistance of counsel. (Doc. 4) On June 11, 2019, undersigned entered an order requiring Movant to either sign and file a limited waiver attached as an exhibit to the order, or to file a notice of withdrawal of his claims within 14 days of the date of the order. (Doc. 5) Respondent filed the pending motion to dismiss the § 2255 Motion on June 28, 2019. (Doc. 6)

         On July 2, 2019, undersigned filed an order requiring Movant to show cause no later than July 31, 2019, why the Court should not dismiss his remaining grounds of the § 2255 Motion for failure to file a signed copy of the waiver provided him with the June 11, 2019 order. (Doc. 7) In a July 11, 2019, order granting Movant's motion for extension of time to respond to Respondent's motion to dismiss, undersigned allowed Movant until July 31, 2019, to file his response and ordered the Clerk of the Court to provide him with a copy of the June 11, 2019, order and also provide him with another copy of the limited waiver. (Doc. 9) Movant filed his response to the Court's order to show cause on July 22, 2019, and he attached a signed copy of the limited waiver. (Doc. 11 at 25-26)

         Movant filed a response to the motion to dismiss, with additional attachments.[3](Docs. 10, 14) In August 2019, Respondent filed its reply in support of its motion to dismiss. (Doc. 16) On August 22, 2019, Movant filed his “Reply to Government's August 7, 2019 Response to His Motion for Equitable Tolling.” (Doc. 17) This document is deemed a surreply to Respondent's reply on its motion to dismiss.[4] Neither Movant's response to the motion to dismiss (Docs. 10, 14) nor the surreply (Doc. 17) is sworn, and neither is supported by any affidavit.

         In addition to arguing for equitable tolling, Movant's surreply advances an irrelevant and erroneous interpretation of Rule 5 of the Rules Governing Section 2255 Proceedings and, on such basis, requests the Court to strike Respondent's reply to its motion to dismiss (Doc. 16). (Doc. 17 at 2-4) The Court declines to strike Respondent's reply.

         II. MOVANT'S HABEAS GROUNDS

         The remaining six grounds of the § 2255 Motion assert claims of ineffective assistance of counsel (“IAC”). In Ground Two, Movant argues his counsel was ineffective for “improperly advising [him] to testify.” (Doc. 1 at 5) Movant contends in Ground Three that counsel failed to “object to the testimony of the government's expert witness.” (Id. at 7) In Ground Five, Movant complains that trial and appellate counsel were ineffective by “failing to properly challenge [his] applicable guidelines calculation during sentencing and on appeal.” (Id. at 8) Movant's Ground Six argument is that counsel was ineffective for failing to “challenge the Court's improper calculation of [his] applicable guidelines range.” (Id.) In Ground Seven, Movant argues that counsel was ineffective for not challenging the Court's incorrect calculation of [his] applicable guidelines range based on 10 or more victims.” (Id.) Movant's Ground Eight claim is that counsel was ineffective for not properly challenging “the Court's incorrect calculation of [his] applicable guideline range based on the use of sophisticated means.” (Id. at 11) . . . . . .

         III. DISCUSSION

         Respondent urges that the § 2255 Motion is untimely because Movant filed it after the expiration of the applicable one-year statute of limitations. (Doc. 6 at 3-5) Whether the § 2255 Motion is time-barred by the statute of limitations is a threshold issue for the Court. The time-bar issue must be resolved before considering other procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Movant's § 2255 Motion because it was filed after April 24, 1996, the effective date of the AEDPA. Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)).

         A. Statute of limitations

         The AEDPA establishes a one-year limitations period for federal prisoners to file a motion collaterally attacking their convictions. The limitations period runs from the latest of, as is pertinent here, “the date on which the judgment of conviction becomes final[.]” 28 U.S.C. § 2255(f)(1). Although § 2255 does not define the term “final, ” the Supreme Court has applied its ordinary standard of finality. “Finality attaches when [the Supreme] Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.” Clay v. United States, 537 U.S. 522, 527 (2003). See also Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) (“With respect to postconviction relief for federal prisoners, this Court has held that the conclusion of direct review occurs when ‘this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari.'” (citing Clay, 537 U.S. at 527, 528-532)).

         Movant was sentenced on March 30, 2015. (CR Doc. 813 at 1, 4) His appeal was denied by the Ninth Circuit on May 15, 2017. Kirby, 692 Fed.Appx. at 334. As noted, Movant filed a petition for writ of certiorari which the United States Supreme Court denied on January 8, 2018. Brewer, 138 S.Ct. 688. Movant then filed a petition for ...


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