MOTION UNDER 28 U.S.C. § 2244 FOR ORDER AUTHORIZING DISTRICT COURT TO CONSIDER 

SECOND OR SUCCESSIVE APPLICATION FOR RELIEF UNDER 28 U.S.C. §§ 2254 OR 2255 

United States Court of Appeals for the 

ZGI4 

Name of Movant 

Elaine Brown 

Place of Confinement 

Prisoner Number 

03924-049 

FCI Aliceville, PO Box 4000, Aliceville, AL 35442 

IN RE: Elaine Brown · 

Case Number 

(leave blank) 

I MOVANT 

1. Name and location of court which entered the jud-gment of conviction from which relief is sought: 

District Court of New Hampshire, 55 Pleasant St., Concord, NH 03301 

2. Parties' Names: __ un_l._· t_e_d_S_t_a_te_s _____ __,;. ___ vs. _Ed_w_a_r_d_&_E_l_a_i_n_e_B_ro_wn_· ____ _ 

3. Docket Number: 09-cr-30-GZS 4. Date Filed: 1/21/09 

5. Date of judgment of conviction: July 9' 2009 420 months 6. Length of sentence: -------

7. Nature of offense(s) involved (all counts): 

1) Conspiracy to Prevent Officers of the U.S. from Discharging Their Duties;18 USC§372 

2) Conspiracy to Commit Offense Against U.S.; 18 USC§371 & 111(a) & (b) 

4) Carrying & Possessing a Firearm in Connection with a Crime of Violence; 18 USC§924(c) 

(1)(A)&(B) . 

6) Felon in Possess~on; 18 USC§922(g)(1) 

. 8) Obstruction of Justice; 18 USC§1503 

11) Failing to Appear for Sentencing; 18 USC§3146 

8. What was your plea? (Check one) [il Not Guilty D Guilty D Nolo Contendere 

9. If you pleaded not guilty, what kind of trial did you have? (Check one) fJ Jury 0 Judge only 

10. Did you testify at your trial? (Check one) 0 Yes £l No 

11. Did you appeal from the judgment of conviction? (Check one) @Yes D No 

12. If you did appeal, what was the 

Name of court appealed to: First Circuit Court of Appeals 

Parties' names on appeal: Elaine Brmm VS. 

Docket nu':Jber of appeal: ___._.p....,n..,.kn.,..o_...t • ...._m.__ _____ Date of decision: 1119/12 

Result of appeal: _:D:....;e:..:n.:.:i:...:e-=d--------------------------

13. Other than a direct appeal from the judgm.en.t of conviction and sentence, have you filed any other petitions, applications for relief, or other motion·s regarding this judgment in any federal court? [1g Yes 0 No 

Case 1:09-cr-00030-GZS Document 284 Filed 04/14/14 Page 1 of 22
14. If you answered "Yes" to question 13, answer the following questions: 

A. FIRST PETITION, APPLICATION, OR MOTION 

(1) In what court did you file the petition, application, or motion? Application for cert US SC 

(2) What were the parties' names? _________________________ Elaine Brown vs.----~~--------------- U.S. 

(3) What was the docket number of the case? unknown 

(4) What relief did you seek? overturn of Count 4 

(5) What grounds for relief did you state in your petition, application, or motion? 

Incorrect jury instructions 

(6) Did the court hold an evidentiary hearing on your petition, application or motion? DYes 

(7) What was the result? 

(8) Date of court's decision: 

0 Relief granted 

0 Relief denied for 

failure to exhaust 

3/12/12 

[iJ Relief denied on the merits 

D Relief denied for procedural default 

IKJ No 

8. SECOND PETITION, APPLICATION, OR MOTION Distri t C rt f N H h" 

(1) In what court did you file the petition, application, or motion? c ou 0 ew amps lre 

(2) What were the parties' names? Elaine Brown v U.S. s _______________________ __ 

(3) What was the docket nuniber of the case? 1:13-cv-21-GZS/09-cr-30-GZS 

(4) What relief did you seek? Vacate or remand for resentencin~ 

(5) What grounds for relief did you state in your petition, application, or motion? 

al Incorrect application of guidelines . b Absence of evidence for Counts 4 & 6 

c Not in possession of weapon with obliterated serial number 

d) Harmful error in Count 4 to run consecutive 

(6) Did the court hold an evidentiary hearing on your petition, application or motion? DYes 

(7) What was the result? 0 Relief granted [i] Relief denied on the merits 

· 0 Relief denied for D Relief denied for procedural default 

failure to exhaust 

(8) Date of court's decision: 6/7/13 

This was. a 2255 

. -2-

~No 

Case 1:09-cr-00030-GZS Document 284 Filed 04/14/14 Page 2 of 22
CONTINUATION OF PAGE 2 

14. C. THIRD PETITION, APPLICATION OR MJTION 

(1) Motion filed in Fourth Circuit Court of Appeals 

(2) Parties named: Elaine Brown v. U.S. 

(3) Docket number: none 

(4) Relief sought: Vacate or correct sentence 

(5) Grounds: 

a) Alleyne - incorrect application of enhancements 

b) No evidence for conviction of Count 4 · c) Ineffective assistance of counsel 

No evidentiary hearing 

(7) Motion returned for pocedural default 

(8) Date of denial 10/22/13 

Case 1:09-cr-00030-GZS Document 284 Filed 04/14/14 Page 3 of 22
C. THIRD AND SUBSEQUENT PETITIONS, APPLICATIONS, OR MOTIONS 

For any third or subsequent petition, application, or motion, attach a separate page providing the information 

required in items (1) through (8) above for first and second petitions, applications, or motions. 

D. PRIOR APPELLATE REVIEW(S) 

Did you appeal the results of your petitions, applications, or motions to a federal court of appeals having 

jurisdiction over your case? If so, list the docket numbers and dates of final disposition for all subsequent 

petitions, applications, or motions filed in a federal court of appeals. 

First petition, application, or motion 0 Yes Appeal No. 0 No 

Second petition, application, or motion 0 Yes Appeal No. 0 No 

Subsequent petitions, applications or motions 0 Yes Appeal No. d No 

Subsequent petitions, applications or motions 0 Yes Appeal No. · 0 No 

Subsequent petitions, applications or motions 0 Yes Appeal No. 0 No 

Subsequent petitions, applications or motions 0 Yes Appeal No. 0 No 

If you did not appeal from the denial of relief on any of your prior petitions, applications, or moti"ons, state which 

denials you did not appeal and explain why you did not. 

I was discouraged, and lacked legal knowledge to proceed. 

-' 

15. Did you present any of the claims in this application in any previoup petition, application, or motion for relief 

under 28 U.'S.C. § 2254 or§ 2255? (Check one) ~ Yes D No 

16. If your answer to question 15 is "Yes," give the docket number(s) and court(s) in which such claims were raised 

and state the basis on which relief was denied. · 

District Court of New Hampshire 

1:13-cv-21-GZS/09-cr-30-GZS 

It was done all wrong due to lack of legal knowledge; my fault. 

17. If your answer to question 15 is "No," why not? This Court will grant you authority to file in the district court 

only if you show that you could not have presented your present claims in your previous § 2254 or § 2255 application because ... 

A. (For§ 2255 motions only) the claims involve "newly discovered evidence that, if proven and viewed in light 

of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no 

reasonable factfinder would have found [you] guilty"; or, 

B. (For§ 2254 petitions only) "the factual predicate for the claim could not have been discovered previously 

through the exercise of due diligence" and "the facts underlying the claim, if proven and viewed in light of the· 

evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for 

constitutional error, no reasonable factfinder would have found [you] guilty of the offense"; or, 

C. (For both § 2254 and § 2255 applicants) the claims involve "a new rule of constitutional law, made 

retroactive to cases on collateral review by the Supreme Court [of the United States], that was previously 

unavailable." · 

- 3-

Case 1:09-cr-00030-GZS Document 284 Filed 04/14/14 Page 4 of 22
I did not presentthe following claims in any previous petition, application, or motion for relief under 28 U.S.C. 

§ 2254: . 

I did not present the claims listed above in any previous petition, application, or motion because 

Alleyne had not yet been decided 

R'Jsemond had not yet been decided 

Movant prays that the United States Court of Appeals for the f1~.;;-t- Circuit grant an Order Authorizing the 

District Court to Consider Movant's Second or Successive Application for Relief Under 28 U.S.C. §§ 2254 or 

2255. . 

Movant's Signature 

I declare under Penalty of Perjury that my answers to all questions in this Motion are true and correct. Executed 

on ~&/ri [date] 

Movant's Signature 

PROOF OF SERVICE 

A copy of this motion and all attachments must be sent to the state attorney general (§ 2254 cases) or the 

United States Attorney for the United States judicial district in which you were convicted (§ 2255 cases). · 

I certify that on C2-h;!;b 1 ,2 ° ( tf I mailed a copy of this motion and all attachments 

[date] 1 

to First Circuit Ct. of Appeals, 1 Courthouse. Way, Boston, at the following address: 

MA 02210 

District Court of New Hampshire, 55 Pleasant St., Concord, NH· 03301 

Movant's Signature 

Case 1:09-cr-00030-GZS Document 284 Filed 04/14/14 Page 5 of 22
IN THE UNITED STATES APPELLATE COURT 

FOR THE FIRST CIRCUIT 

Elaine B1:own 

Peeti tione1: 

v. 

United States of America 

Respondent 

CIVIL NO. 13-cr-21-GZS 

2244 Addendum 

Case #09-cr-30-GZS 

MOTION TO VACATE7SET ASIDE/REMAND PURSUANT TO 28 USC§2255(e)(f) or (3) IN 

LIGHT OF LAFLER V. COOPER, MISSOURI V. FRYE, & ALLEYNE V. UNITED STATES. 

COMES NOW Petitione1:, Elaine Brown, Pl:o se, humbly requests of this coUJ:t, 

pe1:mission to proceed with the hereto motion pursuant to 28 USC§2255(e)(f)or(3), 

in light of the above said mention cases. Petitione1:'s conviction was finalized 

p1:ior to the holdings in the above cases, so under equitable tolling, petitione1: 

is timely. In the case of Alleyne, Which has been deemed a watershed case of 

principle, in the AntiterJ:orism and Effective Death Penalty Acts exception 

to its p1:ohibition on successive habeas petitions, which allows a p1:isoner 

to p1:esent a second or successive habeas c01:pus petition when it 1:elies on a 

' 

new consitutional rule that has been 'made retJ:oactive to cases on collateral 

1:eview by the Sup1:eme Court,' 28 USC§2244(b)(2)(a), codifies the retroactivity 

app1:oach of Teague v. Lane, 489 US 288 (1989), the Appellate Court for the 

Ninth Circuit decided Feb. 9. Invoking one of Teague's two exceptions to its 

general i:ule of nom:etroactivity, the court held that Section 2244(b)(2)(a) 

allows a p1:isoner to present a successive petition that relies on a new 1:ule 

of bedJ:ock p1:inciple that was not gene1:ally decla1:ed retroactive by the 

Supreme CoUJ:t. (Flowers v. Walter, 9th Cir., No. 99-35552, 2/9/01). 

The Court indicated that Circuit split stems f1:om a disag1:eement as to how 

the Supreme Court can express its retJ:oactivity dicisions. The CoUJ:t said 

that retroactivity decisions by the Supreme Court can be manifest in thl:ee 

ways: 

(1) by explicitly stating that a new J:ule of constitutional law is retroactive, (2) by applying the new 1:ule retroactively in a collateral p1:o1 

·--. 

Case 1:09-cr-00030-GZS Document 284 Filed 04/14/14 Page 6 of 22
ceeding, or (3) by in effect making a new rule retroactive where the new rule implicates the fundamental fairness of a criminal proceeding and is related to the accuracy 

of the underlying conviction. 

Since the landmark ruling in Alleyne v. United States, 6/17/13, S.Ct. No. 11-9335, 

there have been numerous cases, including, but not limited to, Astorga v. Kansas, 12-

7568; Dotson v. U.S., 11-9837; Deleon v. U.S., 12-6558; 4th Cir.; Graham v. u.s., 12-

7274, 2d Cir.; Mubdi, 12-7398, 4th Cir.; Shaver, 12-7525, 3rd Cir.; Barnes & Barton v. 

U.S., 12-7769, 12-8236, 1st Cir.; Jordan v. U.S., 12-8298, 11th Cir.; Smarv v. U.S., 

12-8411, 11th Cir.; Abramson v. U.S., 12-8683, 8th Cir.; Lightfoot v. Alabama, No. 

11-20200, 7/12/13. Under these rulings, petitioner Brown is eligible for relief, in 

light of Alleyne decision. 

At issue here is not only the fact of guilt or innocence. What is at issue, is the 

ineffectiveness of counsel, when it came to critical stages of the process. Brown's 

fundamental rights, covered by the 5th, 6th, and 14th Amendments, were grossly violated, 

due to lack of regard for her liberty, by way of defense counsel. In Lafler v. Cooper, 

566 US 132S.Ct. 1376, 182 L. Ed.2d 398 (2012), it was conceded that the inmate's 

counsel was deficient in providing erroneous legal advice concerning the plea bargain. 

In this case of Brown, defense counsel failed to seek a plea bargain at all, and none 

was ever offered to petitioner. Defendants have a 6th Amendment right to counsel, a 

right that extends to the plea bargaining process. During plea negotiations, defendants 

are entitled to the effective assistance of competent counsel. A two~part test 

applies to challenges to guilty or not guilty pleas, based on ineffective assistance 

of counsel. The performance prong of the test requires a defendant to show that counsel's 

representation fell below an objective standard of reasonableness. Petitioner will 

establish prejudice in the hereto motion, and will show that there is a reasonable 

probability that, bur for ocunsel's unprofessional errors, the result of the proceeding 

would have been different. In the context of pleas, a petitioner must show the 

outcome of the plea process would have been different with competent counsel. The 

same principle and holding is stated also in Missouri v. Frye, 566 US, 132S.Ct. 1399, 

182 L.Ed. 2d, 379 (2012). 

SUMMARY OF FACTS: 

Petitioner, along with husband/co-defendant, was convicted on 7/9/09 on various counts. 

Petitioner had never been offered a plea bargain, and defense counsel failed to seek 

such or to negotiate same with prosecutor. Petitioner was unaware of this at the time 

2 

Case 1:09-cr-00030-GZS Document 284 Filed 04/14/14 Page 7 of 22
of trial. Given the length of her sentence (35 years), and petitioner's age, (now 

73), this amounts to a life sentence. It would be a travesty to fail to investigate 

the claims of petitioner in light of Lafler v. Cooper, and Missouri v. Frye. 

Alleyne 

On June 17, 2013, the Supreme Court dicided in Alleyne v. United States, No. 11-9335 

S.Ct., holding that, other than the fact of a prior conviction, any fact that increases 

the penalty for a crime beyond the maximum, must be submitted to a jury, and proved 

beyond a reasonable doubt. It is unconstitutional for a legislature to remove from 

!h~~ ~ the assessment of facts that increase the prescribed range of penalties, 

to which a criminal defendant is exposed. It is equally clear that such facts must 

be established by proof beyond a reasonable doubt. If the law identifies a fact that 

warrants a deprivation of a defendant's liberty, or an increase in the deprivation, 

such fact must be proven to a jury beyond a reasonable doubt. (MANDATE OF THE 

UNITED STATES CONSTITUTION). 

In United States v. Reese, 92 US 214, 232-233 (1876), Justice Clifford stated: The 

indictment must contain an allegation of every fact which is legally essential to 

the punishment to be inflicted, as reaffirmed years later, in the landmark Apprendi 

decision, and now once again in Alleyne. The question presented to the Supreme Court 

is, "Does the enhancement of the effective minimum sentence by aggravating factors 

not proven to a jury beyond a reasonable doubt, deprive a defendant of Due Process 

of Law, and his/her rights to a trial by jury?" The resounding answer by the U.S. 

Supreme Court was, "the judgment is vacated and the case is remanded back to court, 

in light of Apprendi, and once again reiterated in Alleyne. 

Defendant was found guilty by a jury of her peers, but what she wasntt found guilty 

of were the enhancements that skyrocketed her offense level. These enhanced elements 

that had a crucial and drastic effect on her liberty, were not privy to the jury, 

by whom it was her right to be judged. 

These elements that subsequently increased her sentencing range, were illegal, unfair 

and unjust, and basically gave her a life sentence. Thus, if the governrnentt wished 

to seek penalties in excess of those applicable by virtue of the elements of the 

offense alone, then the government must charge the facts, giving rise to the increased 

sentence in the indictment, and must prove the facts to the ~beyond a reasonable doubt. To do otherwise is unconstitutional. To not reveal all elements of the 

-=--

3 

Case 1:09-cr-00030-GZS Document 284 Filed 04/14/14 Page 8 of 22
crime, and to withhold pertinent information which would help establish guilt or 

innocence, on every aspect, so that a jury of defendant's peers can make a decision based on all th e relevant elements of the case, is also unlawful and 

uncosntitutional. 

With a level of 31, had petitioner received a mitigating, minor, or no role, for 

instance, and consideration of her age of 68 at the time of trial, as well as consideration of her characteristics (See Pepper v. U.S.), eliminating the enhancements applied to her by the court by error, she would have received a much lighter 

sentence. Is this justice? 

When a conviction is final, a new rule announced by the Supreme Court only applies 

if it is substantive. Schriq v. Summerlin, 542 US 345, 35 (2004). These substantive rules are applied retroactively because they "necessarily carry a significant 

risk that a defendant convicted of an act that the law does not make criminal [or] 

faces a punishment that the law cannot impose upon him." Alleyne articulated "a 

substantive rule of statutory interpretation" because Alleyne's verdict form clearly 

indicated that the jury did not find brandishing beyond a resonable doubt. Petitioner Brown states that no evidence was presented to the jury implicating her in com~ 

plicity with explosive devices, firearms, etc. No aggravating factors were presented 

by the government to connect her with these items. 

Had defense counsel sought a plea agreement for petitioner, the outcome of her sentence would have been much lighter. It is most likely that the charge of 18 USC 

§924 (c)(1)(A)&(B) would have been dismissed. The prosecutor presented no evidence 

that connected petitioner to the weapons, destructive devices, ammunition, parts, 

etc.. No finger prints of hers were found on any of these items, as so testified 

by-·USMarshals at trial. Her only connection was her proximity to these, which was 

unavoi:dable~-Elue to the fact that they were around her home. Since Harris was 

overturned in Alleyne, only a jury can find facts that trigger a mandatory minimum 

sentence. As so such facts were presented, this should have been dismissed at plea 

negotiations initiated by defense counsel. No evidence was presented to show that 

Brown brandished the hand gun she carried, as US Marshals testified that she did not 

brandish, but kept the weapon down by her side. Again, grounds to dismiss this 

charge. 

In Commonwealth of~Massachusetts v. Romero, the Massachusetts Supreme Court held that 

4 

Case 1:09-cr-00030-GZS Document 284 Filed 04/14/14 Page 9 of 22
"ownership and proximity are not enough" evidence to infer defendant knew about the 

gun, given the passenger was openly handling the gun. The court disagreed with 

the lower court's reasoning that the defendant showed an interest to exercise control over the gun by virtue of the fact that he owned the vehicle, but failed to 

kick out the passenger. A proprietary interest in the vehicle coupled with failure 

affirmatively exclude the [weapon] does not indicate that the defendant controlled 

the firearm. To establish that a defendant had a sufficient relationship to contraband located in a shared area, there must be a particulary link to the defendant. 

Driver does not "unquestionably" have the ability to exercise dominion and control 

just because he knows a passenger is armed. Ownership and operation cannot be 

deemed sufficient in themselves, lest a driver be held strictly liable for any 

contraband brought into the vehicle. 

This holding unquestionably extends to owner and home, as from driver and vehicle. 

The government provided no evidence to justify the 35-years sentence imposed on 

petitioner in Count 4. Again, justification that this charge could have been 

dismissed in a plea bargain. 

18 USC§924 refers to the offense being committed "during the commission of a 

crime of violence." There is no crime of violence in this case. Petitioner did 

not use, attempt :to use, or threaten to use any force against any person or 

property of another. Petitioner often stated that she would never initiate force, 

but would defend herself if fired upon. Again, reason to dismiss this charge in 

a plea bargain. Due to the total lack of evidence on this charge, defense counsel 

could have made a case for actual innocence due to the "absence of facts that are 

prerequesite for the sentence given. (Black's Law Dictionary, 9th Ed.) 

Currently the Supreme Court is considering the case of Rosemond v. U.S., regarding 

the issue of requiring proof of intentional facilitation or encouragement of the 

use: of a firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, 

and Ninth Circuits, or simple knowledge that the principal used a firearm during 

a crime of violence or drug trafficking. The fact that the Supreme Court is taking 

this matter under consideration, along with the holdings of the several abovenamed circuits, shows a change in sentencing and evidence laws and philosophies. 

To sentence a defendant who has played a minor or no role in an action or conspiracy is to deny him his constitutional rights under the 8th Amendment's 

5 

Case 1:09-cr-00030-GZS Document 284 Filed 04/14/14 Page 10 of 22
protection against cruel and unusual punishment. 

Defense counsel would have brought up the issue of petitioner's life of no criminal 

history, 60 plus years of a quiet and peaceable life, contributing to society. 

The sentencing would h ave taken into consideration her characteristics as well as 

the elements of her crime, in imposing a sentence that fit the offender as well as 

the crime, and not just the crime. 

All these matters would have been brought up in a plea negotiation had defense 

counsel so sought such, and petitioner's sentence would have turned out to be far 

lighter than the 35 years she received. 

The time in which petitioner's crime occurred were a time of great emotional upheaval for her. She was torn between obedience to a judge's order to remain 

away from her home and her husband, and loyalty to her husband. Her decision to 

be with her husband was, in retrospect, not the wise one, but the one she felt 

compelled to make at the time. Petitioner regrets her actions, especially the 

resultant fear and upheaval it caused her community, most specifically her close 

neighbors. She also regrets the effects her actions imposed on law enforcement 

personnel, as well as the anxiety of her family. 

IN CONCLUSION, defense counsel, by not seeking a plea agreement, violated petitioner's 

5th, 6th, and 14th Amendment rights. Due Process clause of the U.S. Constitution 

requires all elements of a crime be charged in the indictment and proved to a jury 

beyond a reasonable doubt. Petitioner's sentence is an unconstitutional depirvation of her liberty, because she was unable to secure a plea, and most probably 

reduce her sentence. So not only was petitioner forced to go to trial on the premise that "the government did not submit any documentation," (Missouri v. Frye), 

defense counsel failed to seek and obtain a plea agreement (Lafler v. Cooper), 

and her sentence was enhanced unlawfully (Alleyne), which ultimately sealed her 

fate of a life sentence, in essence. Petitioner is deserving of at least an evidentiary hearing to investigate the said claims in the hereto motion. 

Petitioner requests this honorable court grant her permission to proceed with the 

hereto motion pursuant to 18 USC§2255 (e),(f), or (3). 

Respectfully submitted, 

~rd.&~-v,~-;v Elaine Brown, Pro se 

6 

Case 1:09-cr-00030-GZS Document 284 Filed 04/14/14 Page 11 of 22
ADDENDUM TO 2244 BRIEF 

When petitioner completed her brief, the Rosemond case was still pending. 

As of March 5, 2014, the Supreme Court ruled in favori:of the petitioner. 

Under this Supreme Court ruling, the petitioner would qualify for relief, 

based on the jury instructions, specifically on Count (4) of the indictment. 

The penalty phase of the 924(c) statute violation is what is at issue 

here. In order to impose such a draconian sentence on the petitioner, 

the jury would have to be told, that Ms. Brown committed the underlying 

offense, while engaging in a crime of violence. The jury instructions 

had to relect those words. In the case of Elaine Brown, the jury, was 

not told the exact specifications, to exact guilt. Which is a violation 

of her constitutional rights. The Rosemond case has been deemed a 

watershed case, because of the way it will affect jurisdictions on how 

they indict individuals, and how they can prove defendants participated 

in a conspiracy, or the extent of their participation. Ignorance is no 

longer a crime. 

Case 1:09-cr-00030-GZS Document 284 Filed 04/14/14 Page 12 of 22
IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT COURT OF NEW HAMPSHIRE 

DOCKET NO: 09-cr-30-gzs 

ELAINE BROWN, 

PETITIONER 

VS. 

UNITED STATES, 

RESPONDENT 

PRO SE MOTION TO VACATE SENTENCE PURSUANT TO 28 U.S.C. 2255 

(f)(3) IN LIGHT OF THE RECENT SUPREME COURT DECISIONS IN 

ALLEYNE V UNITED STATES, ROSEMOND V UNITED STATES, LAFLER 

V COOPER, AND MISSOURI V FRYE .............................................................................................................................................................................................................................................................................................................. l ... l .................................................................................... ... nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn 

MS. BROWN"S SENTENCE IS ILLEGAL IN LIGHT 

OF THE SUPREME COUR'E"S DECISIONS IN ALLEYNE 

ROSEMOND, LAFLER, AND MISSOURI. 

On June 17, 2013, the Supreme Court decided Alleyne v. United States, 

NO. 11-9335,(June 17, 2013), holding that: 

The Sixth Amendment provides that those accused of a crime, have the right 

to trial "by an impartial jury." This right, in conjunction with the 

Due Process Clailise, requires that each element of a crime be proved to 

the jury beyond a reasonable doubt. The substance and scope of this right 

depend upon the proper designation of the facts that are elements of 

the crime. The court also held: Juries must find any fact that increases 

either the statutory maximum or minimum because the Sixth Amendment applies 

where a finding of fact both.>alters the legally prescribed range and does 

so in a way that aggravates the penalty importantly, this is distinct from 

Case 1:09-cr-00030-GZS Document 284 Filed 04/14/14 Page 13 of 22
2. 

fact finding used to guide Judicial discretion in selecting a punishment 

"within limits fixed by law." Willia·ms v N.Y., 337 U.S. 241, 246 (1949) 

] 

Prior to Apprendi and Jones, circuits clearly rejected the characterization 

of any element, be it drugs, role, and, but not limited to, quality of 

narcotic, as an element of an.·offense. (see u.s. v Hester, 199 F.3d 1287 

1291, (11th cir, 1-7-00) (and cases cited therein.) After Apprendi and 

Jones, however, that is no longer the law of the land. Now, aft~r Alleyne, 

a number of courts have held that, to the extent that drug amount, drug 

type, enhancements, (inclusive, but not limited to, leader/organizer, 

obstruction of justice, gun bumps, sophisticated means, etc, etc,) do 

increase the defendant's sentence above the statutory maximum, and 

therefore, must be alleged in the indictment, submitted to the jury 

and proven beyond a reasonable doubt. If it is not, a defendant's sentence 

above the statutory maximum, is unconstitutional. See U.S. v Sheppard, 2000, 

WL 988 WL 1006054 (S.D. W VA July 19, 2000) ( Under the Due Process Clause 

of the Fifth Amendment, and the notice and jury trial guararttees of the 

Sixth Amendment, any fact (other than a prior conviction" that increases 

the maximum penalty for a crime, must be charged in the indictment, 

submitted to a jury, and proven beyoncl a reasonable doubt. When applying 

these principles, Ms. Brown's sentence, is clearly unconstitutional. 

Without any specification in the indictment as to any specific applicaThle 

subsection of 18 USC §924, or as to any enhanced role as to threatening 

physical injry, interfering with the administration of justice, offense 

while on release in ('P) counts, obliterated serial number, substantial 

interderence with administration of justice, and threatening bodily harm, 

without any jury findings in that regard, in reference to all accounts, the 

Case 1:09-cr-00030-GZS Document 284 Filed 04/14/14 Page 14 of 22
3. 

enhancements were applied in violation of the Fifth Amendment 

presentment clause·and Due Process Clause, as well as Sixth 

Amendment notice and jury trial guarantees, as it currently stands. 

Therefore, Ms. Brown's sentence is illegal. 

In that regard, Ms. Brown makes the following arguments. First, 

the sentence imposed in this case should be vacated, because the 

court ad~pted.\penalty provisions are unconstitutional. If the law 

identifies a fact that warrants a deprivation of a mefendant's 

liberty, or an increase in the deprivation, such facts must be 

proven to the jury. These are founding words that were recorded in 

the Mandate of this country. Under the aqove premise, petitioner 

states: 

Sub judice, is neither complex or taxing. Its rather simple. Petitioner 

along with her husband, were convicted of failing to pay their 

taxes. Unfortunately, petitioner did not surrender to authorities 

on the date ordered by the court. It is the following episode 

that led to tumultous events, that ended up imposing a draconian 

sentence of (420) months, on the petitioner. In Turnbull v U.S. 

00-345, the matte~~ of sentencing enhancements for the role in 

the offense such as the (3) point mangerial enhancement, and the 

(2) point gun bump , was vacated and remanded by the Supreme 

Coutt, because they were deemed unconstitutional, for not being 

charged in the indictment and proven beyond a reasonable doubt. 

In Count (1) of the indictment, the petitioner was found guilty of 

conspiring to prevent officers of the U.S. from discharging their 

Case 1:09-cr-00030-GZS Document 284 Filed 04/14/14 Page 15 of 22
4. 

duties. 

Yet, the government saw fit to enhance the petitioner with threatening 

physical injry, interfering with administration of !.justice, and offense 

while on release. Whats disturbing here, is that the actual count 

covers those enhancements, as well as count (8) which was an obstnuction 

of justice charge. In its zealousness to prosecute, the government 

over-reached here. On alL'th~ ~~ounts, the government enhanced the 

petitioner by (3) points for "offense while on release". Was it 

really neccessary to enhance by (12) points for one "element"? Was 

it legal? Not according to the Alleyne ruling. Cruel and harsh punishment 

seems more along the lines. 

The government also felt the need to enhance with a''threatening bodily 

harm" e-nhancement, that illici ted a ~)bump of ( 8) levels. Once again, 

that enhancement on Count (8) along with a "substantial interference 

with administration of justice'' is one and the same. The enhancements 

are exactly the same tbbmg as the actual count itself, 'obstruction 

of justice.~' The enhancements alone demand a sentence of (30) years. 

Th±rty years of a deprivation of petitioner's liberty. Aggravating 

elements that should have been privy to the jury. Any element that 

affects one's liberty, is a factor, by law, that must be charged on 

the indictment, and proven beyond a reasonable doubt, as to guilt, or 

non-guilt. It would constitute a miscarriage ofjustice if the petitioner 

was not entitled to the benefit of Alleyne. In light of the 

substantialimpact of Alleyne on prosecutions under 18 U.S.C. 924, the 

court should follow Murphy and consider the decision as establishing 

a watershed rule. Alleyne falls squarely within this definition. Prior 

to Alleyne , facts that were used to increase a sentence specifically 

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5. 

drug quantities, role participation, and gun; bumps, were calculated 

by a probation officer and the AUSA, in a PSR following conviction. 

This is the practice that has now, once again, been deemed 

unconstitutional and must therefore be corrected. It does not matter 

how or what form a constitutional vilation has occurred, once it is 

realized, it must be corrected. 

This is what happened in Alleyne. It has now been realized by the 

U.S. Supreme Court that the Federal Sentence Guidelines have been 

abused and the error must be rectified. It is unconstitutional to 

remove from the_jjury, the assessment of facts that alter the 

Congressionally prescribed range of penalties to which a criminal 

defendant is exposed. Thus, under the reasoning set forth in Alleyne; 

the enhancement attributed to Brown are unconstitutillonal because they 

permit increases in the maximum penalties without requiring that 

these 'factors' be alleged in an indictment, submitted to the 

grand jury, and determined beyond a reasonable doubt by a petit jury. 

Upon §2255 revie~, to not grant relief, in the least, as to an 

evidentiary hearing, would be a travesty of justice, wherein a 9lde;r;: 

lady will continue to languish within the FBOP, without ever having 

a chance to attack her sentence. A draconian sentence, that was 

handed down to her by this court, will see her die in prison. That's 

the reality. Thats not fair. 

In conclusion, on June 17, 2013, the u.s. Supreme Court declared 

unconstitutional a federal sentence scheme that violates certain 

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sentencing procedures under the u.s. Sentencing Guidelines. It is 

now a recognized constitutional practice that any fact that increases 

the penalty for a crime beyond the prescribed statutory maximum, other 

than the fact of a prior conviction; must be submitted to a jury and 

proved beyond a reasonable dout. The court held that the court's 

procedure challenged in this case, is an unacceptable departure from 

the jury tradition that is an indispensibie part of our criminal 

system. Jurisdictional defects are non-waivable and non-defaultable. 

One has to question the legality of this sentence, when no loss of 

life occurred, no assault, no victim impact. Yet, (420) months 

was deemed legal? 

Rosemond v United States 

On march 5, 2014, the Supreme Court decided Rosemond v United States, 

No. 12-895 (March 5, 2014) holding that: 

The trial court's jury instructions were erroneous because they 

failed to require that Rosemond knew in advance that one of his 

cohorts would be armed. In telling the jury to consider merely 

whether Rosemond 'knew his cohort used a firearm', the court did not 

direct the jury to determine when Rosemond obtainedB1e requisite 

knowledge-i.e, to decide whether Rosemond knew about the gun in 

sufficient time, to withdraw from the crime. 

Petitioner's case is similar in a way to Rosemond. Being on a 

premise, doesnt mean that one is fully aware of the goings and 

comings of said premise. Petitioner stated from the beginning that 

she was not aware of what was being brought into !.the house. So 

Case 1:09-cr-00030-GZS Document 284 Filed 04/14/14 Page 18 of 22
7 . 

according to the Supreme Court, unless you tell the jury explicitly, 

that in order to qualify under the aiding and abetting statute, 

or in fact, any statute that includes intent, (1) a person is liable 

only if she takes an affirmative att in furtherance of the underlying 

offense, and (2) with the intent to facilitate that offense's 

commission, the conviction is unconstitutional. In the petitioner's 

case, the government did not explain the jury instructions to the 

jury to inclucle, that petitioner Elaine Brown, had to meet both 

components. On count (4), jury instructions were not inclusive of 

in order to find her guilty on said count, a crime of violence had I 

to be the underlying offense. None of the counts are indicative of 

a crime of violence. There was no crime of violence. There was no 

shootout. The only shots fired was when agents fired upon a guest 

walking down the driveway. Nm shots were returned. What constitutes 

a crime of violence in this case? Was this'crime' explained to the 

jury, in order for them to ascertain guilt, which would justify 

the enhanced penalty of the 924 statute? I believe not, and 

according to Rosemond v United States, the sentence has to be 

vacated. 

The Supreme Court has made it abundantly clear, that this practice 

is just not acceptable. Rosemond's case touches on the 5th, 6th, 14th, 

and Due process clause af:the~A~ead~ent rights. Rosemond's jury 

instructions clearly ommitted pertinent instructions that the jury 

needed to ascertain guilt or innocence. Because of these violations, 

Rosemond's case was remanded, which brings me pack to Brown. If the 

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8 . 

transcripts are reviewed, it will show that the government never explained 

during litigation its intentions, on how, why, when, and where, Brown 

committed a violent crime. What the transcripts will show, are violations 

on her person. 

In conclusion, the law says; " the indictment must contain an allegation 

of every fact, which is legally essential to the punishment to be inflicted.'' 

(Justice Clifford in U.S. v Reese, 92, u.s. 214, 232-233 (1876). These 

penalty enhancements on the 924 statute are illegal and unconstitutional, 

as the jury instructions were not inclusive of the neccessary components, 

that are a must to convict under the 924(c)(1)(a) penalty phase. 

Wherefore movant requests respectfully that this Honorable court, vacate 

her illegal sentence, which was imposed in vtolation of her 5th 6th, and 

14th, Amendment rights. 

The movant asks that she be resentenced on the facts that will be proven 

by a jury at trial. 

Lafler v Cooper. 

The right to effective assistance of counsel may in a particular case 

be violated by even an isolated error of counsel if that error is 

sufficiently egregious and prejudicial. (Murray v Carri~r, 477 U.S. 47~496 

91 L.ed 2d. ,397, 106 S.CT 2639 (1986). In Lafler v Cooper, and Missouri 

v Frye, the esteemed Supreme Court held: If a plea bargain has been 

oofered, a defendant has the right to effective assistance of counsel in 

considering whether to accept it. If that right is denied, prejudice can 

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9. 

shown, if loss of the plea opportunity led to a trial resulting in a 

conviction on more serious charges, or the imposition of a more severe 

sentence. 

If the govermment offered a plea, it was never mentioned to the petitioner, 

at any time. It was the petitioner's right, even if she was claiming 

innoncence, to be able to review the government's offer, and decide 

on whether it was acceptable, or could be negotiated to expose petitioner 

to a lower sentencing guideline. 

It should be noted that a defendant 'need not prove with certainty, 

or even by a preponderance of the evidence, that the outcome would have 

been different absent his attorney's deficient performance.' (Kates v 

U.S., 930 f. supp. 189, 192 (~tciting u.s. v Day, 969 f.2d 39, 42 (3rd cir 1992) 

Petitioner falls under the Missouri v Frye holding as well. In that 

case, counsel did not mention any plea as being offered, period. Missouri 

pled guilty without the benefit of a plea. In Brown's case, no plea 

was mentioned at any time during the criminal proceedings. A violation, 

which according to the Supreme Court, must be rectified. 

In conclusion, the right to effective assistance of counsel may in 

a particular case be violated by even an isolated error of counsel if 

that error is sufficiently egregious and prejudicial. (Murray v Carrier 

477 u.s. 478, 496, 91 L.ed 2d. 397, 106 s.cT 2639 (1986). When a 

conviction is final, a new rule announced by the Supreme Court only 

applies if it is substantive. Schrig v Summerlin, 542, u.s. 345, 35 (2004). 

These substantive rules are ~pplied retroactively because they 

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'necessarily carry a significant risk that a defendant stands convicted 

of an act that the law does not make criminal (or) faces a punishment 

that the law cannot impose upon him. Elaine Brown's 5th, 6th and 14th 

Amendment rights were violated. Movants sentence is an unconstitutional 

deprivation of liberty, because she was unable to have a legitimate 

expectation of what her sentence would be based on what was charged 

and convicted. 

In representing a criminal defendant, counsel owes the client a duty of 

loyalty, a duty to avoid conflicts of interest, a duty to advocate the 

defendant's cause, a duty to consult with the defendant on important 

decisions, a duty to keep the defendant informed of important developments 

in the course of the prosecution, and a duty to bring to bear such skill 

and knowledge as will render tea trial a reliable adversarial testing 

process. Under Lafler, Missouri, Alleyne, and Rosemond, defense counsel, 

failed· Who suffered? Elaine Brown. 

Petitioner is entitled to an evidentiary hearing on Ineffective assistance 

of counsel, and Alleyne, and Rosemond, ciliaims, when record is inconclusive 

on issues. ~u.s. v Witherspoon, 231 f.3d 923, 2000 u.s. App. Lexis 27778 

(4th cir. 11-6-00). Unless the motion and the files and records of the 

case conclusively show that the prisoner is entitled to no relief, the 

court shall cause notice thereof to be served upon the U.S. Attorney, 

grant a prompt hearing theron, determine the issues and make findings 

of fact and conclusions of law with respect thereto. 

Respectfully submitted, 

.& A. 2~ A1V-ti-'>'-"' 

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