Brown v. Mullis

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:24-cv-00706-MR

WILLIAM ARTHUR BROWN, )

)

Plaintiff, )

)

vs. ) ORDER

)

)

GRAHAM MULLIS, et al., )

)

Defendants. )

________________________________ )

THIS MATTER is before the Court on initial review of Plaintiff’s

Complaint [Doc. 1], pursuant to 28 U.S.C. §§ 1915A and 1915(e). Plaintiff

paid the filing fee in this matter.

I. PROCEDURAL HISTORY

On October 6, 1992, a grand jury in the Western District of North

Carolina returned an eleven-count indictment against Plaintiff William Arthur

Brown (“Plaintiff”). United States v. Brown, 202 F.3d 691, 694 (4th Cir.

2000). On July 29, 1993, following an eight-day jury trial before the

Honorable Graham C. Mullen, United States District Judge, Plaintiff was

convicted on six counts, including one count of engaging in a continuing

criminal enterprise (CCE) in violation of 21 U.S.C. § 848, one count of

conspiracy to violate drug laws in violation of 21 U.S.C. § 846, and four

counts of money laundering in violation of 18 U.S.C. § 1956. Id.; see

Criminal Case No. 3:92-cr-00270 (W.D.N.C.). He was sentenced to a total

term of imprisonment of 360 months. Id. at 695-96. Plaintiff appealed,

complaining in part that one of his attorneys at trial, Robert F. Simone,

operated under a conflict of interest because he, Simone, had recently been

convicted on federal racketeering and extortion charges. Id. at 695-96. The

Fourth Circuit found that the record showed that Plaintiff had knowingly,

intelligently, and voluntarily waived the conflict after a recusal hearing

conducted by Judge Mullen. The Fourth Circuit, therefore, affirmed the

District Court’s rulings on the issue.1 Id. at 698.

On or about October 11, 2000, Plaintiff filed a civil action in the Superior

Court of Mecklenburg County, North Carolina, against several individuals

involved in his criminal prosecution, including his attorneys Noell P. Tin and

Mark Foster; United States Attorneys Robert Higdon and Gretchen

Shappert; and F.B.I. Case Agent Gerrod Senatore, claiming inter alia a

1 The Fourth Circuit, however, vacated Plaintiff’s CCE conviction for unrelated reasons

and remanded for further proceedings. Brown, 202 F.3d at 703-4. On remand, the

Government dismissed the CCE charge, and Plaintiff was resentenced, again for a total

term of imprisonment of 360 months. Brown v. United States, No. 3:04CV594-01-MU,

2006 WL 2620375, at *1 (W.D.N.C. Sept. 11, 2006). Plaintiff appealed the resentencing,

and, on October 28, 2002, the Fourth Circuit affirmed the second Judgment. United

States v. Brown, 49 Fed. App’x 432 (4th Cir. 2002), cert. denied, 540 U.S. 1068 (2003).

conflict of interest and conspiracy. [Civil Case No. 3:00-cv-00546-GCM,

Doc. 1: Notice of Removal & Compl.]. Defendants Shappert, Higdon, and

Senatore removed the case to this Court. [Id., id. at 1-2]. Citing authority

vested in the Court by 28 U.S.C. § 1915(e)(2), Judge Mullen dismissed the

case on initial review as “patently frivolous” and imposed a prefiling injunction

on the Plaintiff. [Id., Doc. 16 at 1]. Judge Mullen ordered that “[i]f Plaintiff

wishes to file further documents with the Court he must request permission

from the Court and submit the proposed filings for screening by this Court.”

[Id., id.].

On December 1, 2004, Plaintiff moved to vacate, set aside, or correct

his sentence pursuant to 28 U.S.C. § 2255, asserting various grounds of

ineffective assistance of counsel. See Brown, 2006 WL 2620375. Judge

Mullen granted Plaintiff’s motion in part based on Plaintiff’s claim that his

attorneys were ineffective for failing to challenge a deficient § 851 notice. Id.

at *2. Judge Mullen ordered that Plaintiff be resentenced on his § 846

conviction to a term of imprisonment of twenty years. Id. An Amended

Judgment reflecting this new sentence was entered on September 12, 2006.

[CR Doc. 17]. Plaintiff has completed his sentence and has been released

from BOP custody.

On or about July 22, 2024, Plaintiff filed the pending Complaint in which

he purports to state a claim for “criminal conspiracy” against Judge Graham

Mullis [sic], Gretchen Sheppert [sic], Bobby Higdon, and Noell Tin. [Doc. 1].

Plaintiff claims that these individuals conspired to keep him incarcerated for

over nineteen years. Plaintiff alleges this occurred because his trial attorney,

Robert Simone, “bamboozled” and “sweet-talked” Judge Mullen into allowing

Simone to represent the Plaintiff, despite the conflict of interest. [Id. at 1].

Plaintiff asserts that the 2000 Fourth Circuit decision “must be corrected and

redacted because a criminal act has finally been uncovered.” [Id.; see id. at

5-9]. He also seeks monetary relief. [Id.].

II. STANDARD OF REVIEW

Because Plaintiff is proceeding pro se, the Court must review the

Complaint to determine whether it is subject to dismissal on the grounds that

it is “frivolous or malicious [or] fails to state a claim on which relief may be

granted.” 28 U.S.C. § 1915(e)(2). Furthermore, § 1915A requires an initial

review of a “complaint in a civil action in which a prisoner seeks redress from

a governmental entity or officer or employee of a governmental entity,” and

the court must identify cognizable claims or dismiss the complaint, or any

portion of the complaint, if the complaint is frivolous, malicious, or fails to

state a claim upon which relief may be granted; or seeks monetary relief from

a defendant who is immune from such relief.

In its frivolity review, this Court must determine whether the Complaint

raises an indisputably meritless legal theory or is founded upon clearly

baseless factual contentions, such as fantastic or delusional scenarios.

Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore, a pro se

complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520

(1972). However, the liberal construction requirement will not permit a

district court to ignore a clear failure to allege facts in his Complaint which

set forth a claim that is cognizable under federal law. Weller v. Dep’t of Soc.

Servs., 901 F.2d 387 (4th Cir. 1990).

III. ANALYSIS

Plaintiff’s Complaint fails initial review. Plaintiff’s current claims were

dismissed with prejudice on initial review of his removed Complaint in 2000.

See Lomax v. Ortiz-Marquez, 590 U.S. ---, 140 S.Ct. 1721, 1725 (2020)

(noting that when a court dismisses an action for failure to state a claim for

relief, but neglects to specify with or without prejudice, the dismissal is

treated as an “adjudication on the merits”); McLean v. United States, 566

F.3d 391 (4th Cir. 2009) (in § 1915 context, “[a]n unqualified dismissal for

failure to state a claim is presumed to operate with prejudice”), abrogated on

other grounds by Lomax, 140 S.Ct 1721. Plaintiff, therefore, cannot raise

the same dismissed claims here. Moreover, Plaintiffs Complaint is

undoubtedly time barred. His prosecution and conviction are over three

decades old. The statute of limitations on any claim arising therefrom has

long since expired. The Court, therefore, would also dismiss Plaintiff's

Complaint as facially barred by the statute of limitations. Finally, as before,

Plaintiffs Complaint is wholly frivolous and, in violation of the Court’s prefiling

injunction, Plaintiff failed to seek the Court’s review before filing this action.

The Court, therefore, will dismiss Plaintiffs Complaint with prejudice.

V. CONCLUSION

For the reasons stated herein, the Court will dismiss this action with

prejudice.

ORDER

IT 1S, THEREFORE, ORDERED that this action [Doc. 1] is

DISMISSED with prejudice on initial review under 28 U.S.C. §§ 1915A and

1915(e).

The Clerk is respectfully instructed to terminate this action.

IT IS SO ORDERED. Signed: December 11, 2024

ie ee

Chief United States District Judge AS