FILED
United States Court of Appeals
Tenth Circuit
July 14, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 15-4039
v. (D.C. Nos. 2:13-CV-00603-DB and
2:01-CR-00281-DB-1)
TIMOTHY BRIAN BROWN, (D. Utah)
Defendant - Appellant.
ORDER DENYING A CERTIFICATE
OF APPEALABILITY *
Before KELLY, LUCERO, and McHUGH, Circuit Judges.
Defendant-Appellant Timothy Brian Brown, a federal inmate appearing pro
se, seeks a certificate of appealability (COA) to appeal from the district court’s
denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.
The district court denied the motion as time-barred under the one-year limitation
period of § 2255(f). Brown v. United States, No. 2:13–CV–603, 2015 WL
205179, at *1–3 (D. Utah Jan. 14, 2015). Because we determine that Mr. Brown
has not shown “that jurists of reason would find it debatable whether the petition
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
states a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural
ruling,” we deny a COA and dismiss the appeal. Slack v. McDaniel, 529 U.S.
473, 484 (2000).
On July 25, 2001, Mr. Brown pled guilty to the sexual exploitation of
children in violation of 18 U.S.C. § 2251(a). On November 28, 2001, the district
court sentenced him to 188 months’ imprisonment and imposed a $2500 fine and
$1595 in restitution. He did not pursue a direct appeal. On July 31, 2012, Mr.
Brown filed a motion to reconsider his sentence, which was denied on September
13, 2013. On June 26, 2013, Mr. Brown filed his § 2255 motion.
Section 2255 imposes a one-year limitation period generally commencing
on “the date on which the judgment of conviction becomes final.” 28 U.S.C.
§ 2255(f)(1). Mr. Brown’s judgment was entered on November 28, 2001 and
became final on December 12, 2001, when he did not file an appeal. Because Mr.
Brown sought habeas relief long after December 12, 2002, the district court’s
procedural ruling that his petition is time-barred is not reasonably debatable.
Slack, 529 U.S. at 484.
Mr. Brown argues he is nevertheless entitled to relief due to “actual
innocence.” The Supreme Court has held that “actual innocence, if proved, serves
as a gateway through which a petitioner may pass whether the impediment is a
procedural bar . . . [or] expiration of the statute of limitations.” McQuiggin v.
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Perkins, 133 S. Ct. 1924, 1928 (2013). Yet, a viable claim of actual innocence
requires a petitioner “to support his allegations of constitutional error with new
reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at
trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Here, Mr. Brown offers no
such evidence to support a claim that he is factually innocent of the crimes to
which he pled guilty. Laurson v. Leyba, 507 F.3d 1230, 1233 (10th Cir. 2007)
(“Actual innocence means ‘factual innocence.’” (quoting Bousley v. United
States, 523 U.S. 614, 623 (1998))).
Instead, Mr. Brown appears to argue that he is “innocent” because in 2012
the Supreme Court instituted “a new rule of Constitutional Law” relieving him of
criminal liability because the federal government lacked authority under the
Commerce Clause to prosecute him. 3 R. 16 (citing Nat’l Fed’n of Indep. Bus. v.
Sebelius, 132 S. Ct. 2566 (2012)). He further argues his petition is timely
because, although he filed it over a decade after his judgment became final, he
filed it within one year of the Court’s decision in Sebelius, issued on June 28,
2012. 28 U.S.C. § 2255(f)(3). For the reasons outlined by the district court,
Sebelius did not alter any portion of the law concerning the federal court’s
jurisdiction over Mr. Brown’s conviction for sexual exploitation of children.
Mr. Brown also asserts he was convicted twice, in violation of the Double
Jeopardy Clause, by Utah and the federal government. Aplt. Br. 4. The Double
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Jeopardy Clause is not implicated here, where “a defendant in a single act
violate[d] the ‘peace and dignity’ of two sovereigns by breaking the laws of
each,” thereby committing “distinct offenses.” Heath v. Alabama, 474 U.S. 82,
88 (1985).
We DENY a COA and IFP status, and we DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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