BROWN v. USA

Filing 8

ENTRY Dismissing Action and Directing Entry of Final Judgment - The Court concludes that 28 U.S.C. § 2255 does not provide a remedy of the sentence computation challenge Brown presents. His 28 U.S.C. § 2255 motion will therefore be denie d and the action dismissed without prejudice. Judgment consistent with this Entry shall now issue. This Entry shall also be entered on the docket in the underlying criminal action, No: 1:07-cr-0060-LJM-MJD-1. The Court denies a certificate of appealability. (See Entry.) Signed by Judge Larry J. McKinney on 5/19/2016. Copy sent to Petitioner via US Mail. (GSO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DEVON BROWN,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Entry Dismissing Action and Directing Entry of Final Judgment
I. The Motion Pursuant to 28 U.S.C. § 2255
Petitioner Devon Brown is confined at a federal prison in Colorado serving the executed
portion of a sentence imposed by this Court in No. 1:07-cr-060-LJM-MJD. According to Brown,
after being sentenced in No. 1:07-cr-060-LJM-MJD he was sentenced to a term of eight years by
a Georgia state court and this sentence was to be served concurrent with the federal sentence.
Brown has filed this action pursuant to 28 U.S.C. § 2255 challenging the computation of
his federal sentence by the Bureau of Prisons. More specifically, Brown alleges that the present
configuration of his sentences by prison authorities calls for his Georgia state sentence to be served
consecutive to the federal sentence. This would cause him to serve, in the aggregate, more time
than intended by the state court in Georgia.
A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal
prisoner challenges his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343
(1974). Section 2255 requires the court to vacate, set aside, or correct the sentence of a prisoner in
custody if the Court finds that “the sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without jurisdiction to impose such sentence, or that the

sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a).
Here, Brown does not contend that the conviction or sentence in No. 1:07-cr-060-LJM-MJD
is infirm in any way. Rather, he challenges the manner in which the sentence is being computed
and executed. This is an appropriate challenge under 28 U.S.C. § 2241 because § 2241 provides a
vehicle for attacking “the execution, not the validity, of the sentence,” United States v. Ford, 627
F.2d 807, 813 (7th Cir. 1980), and hence “challenges to the computation of a sentence must be
brought under 28 U.S.C. § 2241.” Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997)(citing
Carnine v. United States, 974 F.2d 924, 927 (7th Cir. 1992)); see also United States v. Johnson,
No. CRIM. 08-30236-GPM, 2009 WL 3824583, at *1-2 (S.D. Ill. Nov. 15, 2009)(“the United
States Court of Appeals for the Seventh Circuit specifically has held that the proper mechanism
for challenging the computation of a federal prison sentence is a petition under 28 U.S.C. § 2241”)
(citing cases). For him to do this, Brown “must petition against his prison custodian in the federal
judicial district where he is confined, not, as he attempts to do here, in this district against this
Court.” Id. at *2 (citing cases). This is because the sole venue for a § 2241 habeas corpus petition
is the judicial district where Petitioner is detained. Webster v. Daniels, 784 F.3d 1123, 1144 (7th
Cir. 2015) (en banc) (citing Rumsfeld v. Padilla, 542 U.S. 426, 434–35 (2004)).
For the reasons explained, the Court concludes that 28 U.S.C. § 2255 does not provide a
remedy of the sentence computation challenge Brown presents. His 28 U.S.C. § 2255 motion will
therefore denied and the action dismissed without prejudice.
Judgment consistent with this Entry shall now issue.
This Entry shall also be entered on the docket in the underlying criminal action,
No: 1:07-cr-0060-LJM-MJD-1.

II. Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing
§ 2255 Proceedings, and 28 U.S.C. § 2253(c), the Court finds that Brown has failed to show that
reasonable jurists would find it “debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore denies a certificate of
appealability.
IT IS SO ORDERED.

Date:___________
5/19/2016
Distribution:

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Electronically Registered Counsel
Devon Brown
#09079-028
Florence-High USP
Inmate Mail/Parcels
P.O. Box 7000
Florence, CO 81226
NOTE TO CLERK: PROCESSING THIS DOCUMENT REQUIRES ACTIONS IN ADDITION TO DOCKETING AND DISTRIBUTION.