BROWN v. WATSON

Filing 27

ORDER Denying Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Directing Entry of Final Judgment - Mr. Brown's petition for a writ of habeas corpus is denied. Judgment dismissing this action with prejudice shall now issue. (SEE ORDER.) Copy sent to petitioner via US Mail. Signed by Judge James Patrick Hanlon on 11/18/2021.(TPS)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
BRIAN L. BROWN,

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Petitioner,
v.
T.J. WATSON,
Respondent.

No. 2:20-cv-00259-JPH-MJD

Order Denying Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
and Directing Entry of Final Judgment
In 2002, petitioner Brian Brown was convicted of one count of kidnapping in violation of
18 U.S.C. § 1201(a)(1) and one count of sexual abuse of a minor in violation of 18 U.S.C.
§§ 2241(c) and 2246(2)(A). He seeks relief from his sentence pursuant to 28 U.S.C. § 2241. For
the following reasons, Mr. Brown's habeas petition must be denied.
I. Procedural and Factual Background
A. Criminal Offense
Mr. Brown offered to take the daughter of a family friend with him on an overnight trip to
Texas. United States v. Brown, 330 F.3d 1073, 1076 (8th Cir. 2003). Mr. Brown did not return the
girl when planned, and he sexually assaulted her during the trip. Id. When police arrested Mr.
Brown, the girl reported that Mr. Brown had sexually assaulted her, and a medical examination
revealed semen in her pants. Id. Genetic testing showed that Mr. Brown's DNA matched the semen
found in the girl's clothing. Id.
Mr. Brown was subsequently charged with one count of kidnapping in violation of 18
U.S.C. § 1201(a)(1) and one count of sexual abuse of a minor in violation of 18 U.S.C. §§ 2241(c)
and 2246(2)(A). United States v. Brown, Case No. 4:01-cr-40019-HFB-1 (W.D. Ark.) ("Crim.
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Dkt."), dkt. 8. A jury convicted Mr. Brown of both counts after a five-day trial. Crim. Dkt. 64. In
June 2002, the court sentenced Mr. Brown to concurrent terms of life imprisonment. Crim. Dkt.
87.
Mr. Brown appealed his conviction and sentence. Crim. Dkt. 91. He raised several
challenges on appeal, including two challenges to enhancements applied while determining his
offense level under the United States Sentencing Guidelines. See Brown, 330 F.3d at 1077-80. The
Eighth Circuit affirmed Mr. Brown's conviction and sentence. Id. at 1080. The Supreme Court
denied Mr. Brown's petition for a writ of certiorari. Brown v. United States, 540 U.S. 975 (2003).
B. Motion for Relief Under 28 U.S.C. § 2255
Mr. Brown filed a motion under 28 U.S.C. § 2255 attacking his conviction and sentence in
2004. Crim. Dkt. 106. He then filed several amended motions. Crim. Dkts. 121, 126, 159. One of
the issues Mr. Brown raised was a challenge to certain enhancements applied under the Sentencing
Guidelines—he argued that these enhancements were applied in violation of the Sixth Amendment
because they were not submitted to a jury. See Crim. Dkt. 193 at 1. The court rejected this argument
because the enhancements applied at sentencing affected the sentencing guidelines range, not the
statutory maximum sentence allowed. Id. at 4. The statutory maximum sentence for the offenses
of conviction was life imprisonment and that is what Mr. Brown received, so his sentence "was
not improperly enhanced." Id. The Eighth Circuit affirmed the denial of Mr. Brown's § 2255
motion, United States v. Brown, 528 F.3d 1030 (8th Cir. 2008), and the Supreme Court denied
certiorari, Brown v. United States, 555 U.S. 937 (2008).

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C. Subsequent Collateral Attacks 1
Mr. Brown has filed numerous collateral attacks on his conviction and sentence. The first
came shortly after the Supreme Court denied certiorari on the denial of Mr. Brown's § 2255 motion.
In that case, Mr. Brown again alleged that his sentence was improperly enhanced on facts not
submitted to a jury. Crim. Dkt. 221 at 25-27. The court concluded that Mr. Brown's motion was a
successive § 2255 motion and denied it. Crim. Dkt. 233.
In 2010, Mr. Brown filed a § 2241 petition in the Eastern District of Kentucky wherein he
asked the court to resentence him "under the identification that the Sentencing Guidelines violate
the Sixth Amendment, as enhancements were issued that were not found before a jury, nor plead
to." Brown v. Wilson, Case No. 6:10-cv-00301-GFVT, dkt. 2-3 at 5 (cleaned up). The court denied
Mr. Brown's motion. Id. at dkt. 15.
Undeterred, Mr. Brown filed another post-judgment motion in the court of conviction.
Crim. Dkt. 253. In that motion, Mr. Brown argued that his sentence violated the Ex Post Facto
Clause because the version of the Sentencing Guidelines used during his sentencing became
effective after the date of his offenses. Id. The court interpreted this motion as another successive
§ 2255 motion and denied it because the Eighth Circuit had denied Mr. Brown's request to file a
successive § 2255 motion. Crim. Dkt. 278. The court did not address the merits of Mr. Brown's
claims. Id.
Mr. Brown filed yet another § 2255 motion in the court of conviction in August 2016.
Crim. Dkt. 285. He raised three arguments worth noting: (1) the Supreme Court's decision in
Alleyne v. United States, 570 U.S. 99 (2013), supported his argument that the enhancements

The discussion of Mr. Brown's many collateral attacks on his sentence is not exhaustive. This
section references only the collateral attacks that are relevant to the § 2241 petition before this
Court.
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applied at sentencing violated his Sixth Amendment rights; (2) the court improperly calculated his
criminal history category by counting previous convictions as separate offenses and including
misdemeanor offenses; and (3) the court used the wrong version of the Sentencing Guidelines
because it used a version that came into effect after Mr. Brown committed the offenses. Id. The
court denied Mr. Brown's motion, finding that it was a successive § 2255 motion and Mr. Brown
had not obtained permission to file a successive § 2255 motion. Crim. Dkt. 292.
Mr. Brown filed a § 2241 petition in the District of Arizona in May 2019. Brown v.
VonBlanckensee, Case No. 4:19-cv-00269-RCC-LCK (D. Ariz.), dkt. 1. He raised the same three
arguments as he did in the § 2255 motion filed in the court of conviction in 2016. Id. The court
denied Mr. Brown's § 2241 petition, finding that he failed to satisfy the burden of "showing the
inadequacy or ineffectiveness of the § 2255 remedy." Brown, Case. No. 4:19-cv-00269-RCC-LCK
(D. Ariz.), dkt. 6 at 3. The Ninth Circuit denied Mr. Brown's request for a certificate of
appealability. Id. at dkt. 16.
II. Discussion
In this § 2241 petition, Mr. Brown "does not challenge the legality of his conviction;" he
instead asks the Court to "vacate the sentence that was enhanced based on the findings that it is
void." Dkt. 3 at 14. He presents the same three challenges that he presented in the court of
conviction and in the § 2241 petition filed in the District of Arizona: (1) the sentencing court
violated the Ex Post Facto clause by using a version of the United States Sentencing Guidelines
that became effective after Mr. Brown committed the offenses for which he was convicted; (2) his
sentencing guideline range was enhanced based on factors that were not submitted to a jury; and
(3) the sentencing court erred in calculating his criminal history category because it improperly
counted two prior felony convictions as separate offenses and improperly counted prior

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misdemeanor convictions. For the reasons explained below, Mr. Brown cannot pursue any of these
claims under § 2241.
A. Section 2241 Standards
A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal
prisoner can challenge his conviction or sentence. See Shepherd v. Krueger, 911 F.3d 861, 862
(7th Cir. 2018); Webster v. Daniels, 784 F.3d 1123, 1124 (7th Cir. 2015) (en banc). Under very
limited circumstances, however, a prisoner may employ section 2241 to challenge his federal
conviction or sentence. Webster, 784 F.3d at 1124. This is because "[§] 2241 authorizes federal
courts to issue writs of habeas corpus, but § 2255(e) makes § 2241 unavailable to a federal prisoner
unless it 'appears that the remedy by motion [under § 2255] is inadequate or ineffective to test the
legality of [the] detention.'" Roundtree v. Krueger, 910 F.3d 312, 313 (7th Cir. 2018). Section
2255(e) is known as the "savings clause."
The Seventh Circuit has held that § 2255 is "'inadequate or ineffective' when it cannot be
used to address novel developments in either statutory or constitutional law, whether those
developments concern the conviction or the sentence." Roundtree, 910 F.3d at 313 (citing e.g., In
re Davenport, 147 F.3d 605 (7th Cir. 1998); Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013);
Webster, 784 F.3d at 1123). Whether § 2255 is inadequate or ineffective "focus[es] on procedures
rather than outcomes." Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002).
The Seventh Circuit construed the savings clause in In re Davenport, holding:
A procedure for postconviction relief can be fairly termed inadequate when it is so
configured as to deny a convicted defendant any opportunity for judicial
rectification of so fundamental a defect in his conviction as having been imprisoned
for a nonexistent offense.
In re Davenport, 147 F.3d at 611. "[S]omething more than a lack of success with a section 2255
motion must exist before the savings clause is satisfied." Webster, 784 F.3d at 1136. Specifically,
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to fit within the savings clause following Davenport, a petitioner must meet three conditions: "(1)
the petitioner must rely on a case of statutory interpretation (because invoking such a case cannot
secure authorization for a second § 2255 motion); (2) the new rule must be previously unavailable
and apply retroactively; and (3) the error asserted must be grave enough to be deemed a
miscarriage of justice, such as the conviction of an innocent defendant." 2 Davis v. Cross, 863 F.3d
962, 964 (7th Cir. 2017); Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013).
B. Relitigating Issues Already Presented
Section 2244(a) prohibits a court from entertaining a habeas corpus petition "if it appears
that the legality of such detention has been determined by a judge or court of the United States on
a prior application for a writ of habeas corpus, except as provided in § 2255." 28 U.S.C. § 2244(a).
This section "bars successive petitions pursuant to 28 U.S.C. § 2241, which are directed at the
same issue." Schaefer v. Bezy, 199 F. App'x 548, 551 (7th Cir. 2006) (citing Valona v. United
States, 138 F.3d 693, 694 (7th Cir. 1998)).
The arguments Mr. Brown presents in the § 2241 petition filed in this Court are the same
as the arguments he presented in the § 2241 petition filed in the District of Arizona. 3 Compare
dkts. 1 and 3 with Brown v. VonBlanckensee, Case No. 4:19-cv-00269-RCC-LCK (D. Ariz.), dkt.
1. Because the Arizona district court already addressed Mr. Brown's arguments, § 2244(a) bars
this Court from doing so. Ellis v. Olson, 27 F. App'x 620, 622 (7th Cir. 2001) (affirming dismissal
under § 2244(a) of a § 2241 petition that raised the same legal issue as a previously rejected § 2241
petition). Consequently, Mr. Brown's § 2241 petition must be denied.

2

The respondent argues that statutory claims are not cognizable under §§ 2241 and 2255(e) but
acknowledges that Davenport currently forecloses this contention. Dkt. 20 at 8, n.4.
3
Mr. Brown presented the argument that his sentence was enhanced based on factors not submitted
to a jury to several courts, to no avail. See Part I.B and C, supra.
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III. Conclusion
As explained above, Mr. Brown's petition for a writ of habeas corpus is denied. Judgment
dismissing this action with prejudice shall now issue.
SO ORDERED.
Date: 11/18/2021

Distribution:
BRIAN L. BROWN
05937-010
TERRE HAUTE - USP
TERRE HAUTE U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808
Brian L. Reitz
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]

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