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Brim v. United States

United States District Court, C.D. California

April 14, 2015

BRIAN KEITH BRIM, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant. TERM GAVEL ON DOCKET No. 11

Appeal No. 14-55792. Appeal No. 13-56477.

ORDER RE CERTIFICATE OF APPEALABILITY AND "REQUEST TO WITHDRAW" [CV 99-02201 DDP] [SA CR 93-00098 LHM] [Dkt. Nos. 484, 495, 496]

DEAN D. PREGERSON, District Judge.

In 1996, Plaintiff was convicted of conspiracy to manufacture phencyclidine ("PCP"), in violation of 21 U.S.C. § 846, 841(a)(1), possession of piperidinocyclohexanecarbonitrile (PCC) and piperidine with intent to manufacture PCP, in violation of 21 U.S.C. § 841(a)(1), and attempt to manufacture PCP, in violation of 21 U.S.C. § 841(a)(1). (Cr. Dkt. Nos. 17, 223.) All three convictions were based on possession of certain precursor chemicals used in the manufacture of PCP; no actual PCP was found. (Dkt. No. 428, Magistrate's Report & Recommendation ("R&R") at 6-7.) He was cc: 9th Circuit Court of Appeal sentenced to two life sentences and another sentence of 20 years, all to run concurrently. (Cr. Dkt. No. 245.) Plaintiff appealed his conviction and sentence to the Ninth Circuit, which vacated the conviction as to the latter two charges but left the life sentence for the first charge intact. United States v. Brim, No. 96-50530, *1, *3 (9th Cir. Oct. 29, 1997).

Various petitions for relief have followed over the intervening years. Relevant to this order, on November 24, 2003, the Court denied Plaintiff's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. On September 14, 2012, the Court denied Plaintiff's motion to re-consider that original denial under § 2255, as well as denying a motion under Fed. R. Crim. P. 36 to re-open the judgment to correct an alleged "clerical error." (Cr. Dkt. No. 462. See also Cr. Dkt. No. 461 & Civ. Dkt. No. 39 (underlying motions).) Plaintiff has since appealed that decision to the United States Court of Appeal, Ninth Circuit, creating Appeal No. 13-56477. (Cr. Dkt. No. 484.)

On July 19, 2013, the Court also denied another motion for relief under § 2255, as well as motions for appointment of counsel and corrective judgment. (Cr. Dkt. No. 483.) Plaintiff has appealed that decision to the Ninth Circuit as well, creating Appeal No. 14-55792. (Cr. Dkt. No. 491.)

On May 21, 2014, the circuit court issued an order remanding the case to this Court for the limited purpose of granting or denying a Certificate of Appealability ("COA") in each of the above appeals.

I. Dkt. No. 484/Appeal No. 13-56477

"A certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253. The order at issue here was in response to two motions. In the first motion, the grounds for relief were, generally, (1) "newly discovered evidence" that showed Plaintiff's innocence as to conspiracy, and (2) both "newly discovered evidence" and clarifications regarding expert reports discussing how much PCP could have been made from the quantities of precursor found in Plaintiff's possession. (Civ. Dkt. No. 39.) The second motion alleged, similarly, that the magistrate had made a "clerical error" in construing the expert reports. (Cr. Dkt. No. 461 at 5-7.)

To meet the "substantial showing" requirement of § 2253, a petitioner must show that "reasonable jurists could debate whether... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court denied the motions for both procedural and substantive reasons.

Procedurally, the Court treated the motions as motions for relief under 28 U.S.C. § 2255, although they were framed by Plaintiff as motions under Fed.R.Civ.P. 60(b) and Fed. R. Crim. P. 36. This is because both motions were ultimately attempts to revisit a § 2255 petition. The Court therefore held that the motions were untimely and successive. (Civ. Dkt. No. 43 at 2.) However, because reasonable jurists might disagree that Plaintiff was, in fact, attempting to lodge a § 2255 petition under a different name in his latter motions, the Court also briefly addressed the merits of his motions and found them groundless. (Id. at 2-3.) Therefore, the Court also finds it appropriate to address the merits of the motions in assessing the request for a COA.

A. Evidence Showing Actual Innocence of Conspiracy

As to the "new" evidence regarding the conspiracy, it consisted primarily of a supposed inconsistency between police testimony before the grand jury that the co-defendants had "come together" and trial testimony that they had not been found together. But, first, this is not "new" evidence, as it was already on the record, and second, the evidence Plaintiff claims would have been helpful to him was put before the jury. Plaintiff's own motion showed that the supposedly exculpatory testimony was in the trial transcript. (Civ. Dkt. No. 39 at 5-6.) No reasonable jurist could find a constitutional violation on this issue.

B. Expert Opinions, Letters, and Reports

Plaintiff was sentenced according to federal sentencing guidelines, which set a "base offense level" in drug cases according to the amount of the drug a defendant possessed or manufactured. USSG § 2D1.1(c) (1995), available at http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/1995/1995_Guidelines_Manual_Full.pdf. Where the charge is conspiracy to manufacture the drug in question, but no drugs are actually seized, the base offense level is calculated from the amount of the drug the defendant could have manufactured. "Where there is no drug ...


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