Brown v. Sepanek

Filing 10

MEMORANDUM OPINION & ORDER; 1) granting 9 motion to amend petition and clerk shall docket Brown's tendered amended 2241 as an amended petition 2) Brown's original pet and his amended pet are DENIED 3) motion seeking leave to commence discovery 7 is DENIED AS MOOT; 4) court will enter appropriate judgment 5) matter is STRICKEN from active docket. Signed by Judge Henry R. Wilhoit, Jr on 5/6/13.(SMT)cc: COR, Brown via USMail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND

DEMETREOUS A. BROWN,

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Petitioner,

v.
MICHAEL SEPANEK, Warden,
Respondent.

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Civil Action No. 13-37-HRW

MEMORANDUM OPINION
AND ORDER

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Demetreous A. Brown is an inmate confined in the Federal Correctional
Institution in Ashland, Kentucky. Proceeding without counsel, Brown has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his
federal conviction and sentence [D. E. No.1] and a motion to amend his original §
2241 petition. [D. E. No.9] Brown has paid the $5.00 filing fee.
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C.
§ 2243; Alexander v. Northern Bureau o/Prisons, 419 F. App'x 544, 545 (6th Cir.
2011). The Court must deny the petition "if it plainly appears from the petition and

any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules
Governing § 2254 Cases in the United States District Courts (applicable to § 2241

petitions under Rule 1(b)). The Court evaluates Brown's petition under a more
lenient standard because he is not represented by an attorney. Erickson v. Pardus,
551 U.S. 89,94 (2007); Burton v. Jones, 321 F.3d 569,573 (6th Cir. 2003). At this
stage, the Court accepts Brown's factual allegations as true, and construes his legal
claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Having reviewed both the original and amended petitions, the Court must deny
them because Brown can not pursue his claims in a § 2241 habeas corpus proceeding.

BACKGROUND
Brown pleaded guilty in an Indiana federal court to one count of conspiring
with intent to distribute more than 50 grams of crack and more than five kilograms
of a substance containing cocaine; eleven counts of distributing crack cocaine; and
one count of possessing a firearm as a felon, and was sentenced to 220 months'
imprisonment. United States v. Brown, No.1 :05-CR-0082-0 1 (S. D. Ind. 2005)1 The
Seventh Circuit Court ofAppeals affirmed Brown's conviction and sentence. United
States v. Brown, 230 F. App'x 582 (7th Cir. 2007), reh 'g denied (Aug. 2, 2007).

On August 18, 2008, Brown filed a timely motion to vacate his sentence under
28 U.S.C. § 2255. Brown v. United States, No. 1:08-CV-1117-LJM-DML (S.D. Ind.

On March 3, 2009, the sentencing court reduced Brown's prison sentence to 168 months
No. 94-3, therein]
pursuant to 18 U.S.C. § 3582(c)(2). [D.

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2008). Brown alleged that during the pre-trial, sentencing, and appellate stages of
his criminal proceeding, his counsel rendered ineffective assistance of counsel in
violation of his rights guaranteed under the Sixth Amendment of the United States
Constitution. [D. E. No.2, therein] Brown further alleged that because the United
States did not seek a reduction of his offense level, he was the victim of government
vindictiveness in violation ofhis Fifth Amendment right to due process oflaw. [Id.]
On October 20,2008, and again on December 31, 2008, Brown amended his § 2255
motion to assert additional claims alleging ineffective assistance of counsel during
his criminal proceeding. [D. E. Nos. 16 and 20, therein]
On February 18,2009, the sentencing court denied Brown's § 2255 motion,
finding that his Fifth and Sixth Amendment claims lacked merit. [D. E. No. 22,
therein] The court later denied Brown a certificate of appealability. [D. E. No. 32,
therein] Brown appealed, but the Seventh Circuit denied Brown a certificate of
appealability, finding that Brown had not made a substantial showing of the denial
of a constitutional right. [D. E. No.47, therein; see also Brown v. United States, No.
09-2157 (7th Cir. Nov. 20,2009)]
On February 9, 2010, Brown filed a motion in the sentencing court seeking
relief from his sentence under Federal Rule of Civil Procedure 60(b), labeling his
submission as "Motion for Relief From Direct Appeal 2255-2253 Judgments." [D.
3

E. No. 48, therein] On February 17,2010, the sentencing court denied Brown's Rule
60(b) motion, construing it as a successive collateral attack based on the fact that
Brown had merely reiterated the same ineffective assistance of counsel claim that he
had previously and unsuccessfully raised in his initial § 2255 motion. [D. E. No. 49,
therein] The Seventh Circuit construed Brown's appeal as a request for a certificate
of appealability and denied his construed request. [D. E. No. 62, therein]
Brown has since filed motions in the sentencing court seeking the retroactive
application ofthe federal sentencing guidelines and further reductions ofhis sentence
under 18 U.S.C. § 3582, but was unsuccessful in those attempts. United States v.

Brown, No.1 :05-CR-82-LJM-KPF [D. E. Nos. 149 and 154 therein] Brown has
appealed those rulings, and his appeal is currently pending in the Seventh Circuit.
In his original § 2241 petition, Brown challenges both his underlying
conviction for conspiracy to distribute cocaine base and the sentence he received.
Brown contends that based on the holding in United States v. Colon, 549 F.3d 656 (7th
Cir. 2008), his conviction is unconstitutional and that his remedy under § 2255 was
inadequate and ineffective to challenge his detention. In Colon, the Seventh Circuit
held that the defendant's regular purchases of saleable quantities of cocaine from a
drug dealer did not, by itself, render him an aider and abettor ofthe dealer's narcotics
trafficking conspiracy.

Id., at 571-72. Brown states that his drug conspiracy
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conviction was based in large part on a detective's trial testimony that he had made
regular purchases of soft powder cocaine from drug conspirator Anthony Howard,
and contends that based on Colon, such evidence or testimony was insufficient to
convict him ofa drug conspiracy. Brown argues that pursuant to Colon, he is actually
innocent ofconspiring with intent to distribute more than 50 grams ofcrack and more
than five kilograms of a substance containing cocaine in violation of § 846.
Brown also alleges that he is actually innocent ofthe sentence he received. On
direct appeal, the Seventh Circuit rejected Brown's challenge to the sentencing
court's use ofthe "100 to one" ratio/sentencing disparity between crack cocaine and
powder cocaine in calculating Brown's sentencing range. The Seventh Circuit stated:
But a district court must to follow the 100: 1 ratio in calculating
defendant's guidelines range because the ratio reflects the "policy
choices made by Congress and by the Sentencing Commission." United
States v. Jointer, 457 F.3d 682, 686 (7th Cir. 2006). A challenge to
Brown's sentence on this ground would be frivolous.
United States v. Brown, 230 F. App'x at 848-85.

Brown argues that because the United States Supreme Court subsequently
reversed Jointer,2 the case upon which the Seventh Circuit relied in its decision
2

In Jointer v. United States, 552 U.S. 1090, 128 S. Ct. 855 (2008), the Supreme Court vacated
and remanded Jointer's case to the Seventh Circuit for further consideration in light of Kimbrough
v. United States, 552 U.S.85, 128 S.Ct. 558, 169 L. Ed.2d 481 (2007).
In Kimbrough, the Supreme Court held that 21 U.S.C.A. § 841 (b)(l)(A)(ii-iii), the Anti-Drug
Abuse Act of 1986, which adopted 100-to-one ratio that treated every gram of crack cocaine as

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affirming his original 220-month sentence under the federal sentencing guidelines in
place at that time, his sentence is now invalid and he is entitled to collateral relief
under § 2241.
In his amended § 2241 petition [D. E. No.9], Brown not only reiterates his
prior argument based on Colon, but also alleges that the prosecutor (1) knowingly
caused a detective to provide false testimony to the sentencing court at his sentencing
hearing, and (2) engaged in vindictive conduct by obtaining a superseding indictment
against him charging him with conspiracy to distribute crack and crack cocaine.
Brown asks that his conviction be vacated and that he be re-sentenced under
the newer and lower "20 to one" sentencing disparity between crack and powder
cocaine set forth in the federal sentencing guidelines. Brown has also filed a motion
seeking leave to begin the discovery process. [D. E. No.7]

equivalent to 100 grams of powder cocaine, did not require that Federal Sentencing Commission
incorporate the 100-to-one ratio throughout federal Sentencing Guidelines, or require sentencing
courts under advisory Guidelines regime to adhere to 100-to-one ratio, other than for crack cocaine
quantities that triggered statutory mandatory minimum sentences. Kimbrough, 552 U.S. at 571-74.
After the Supreme Court remanded Jointer's case to the Seventh Circuit, that court then
remanded the case to the district court to consider whether Jointer's sentence should be modified
pursuant to 18 U.S.C. § 3582(c) and the sentencing guidelines in place at that time, or whether
Jointer should be re-sentenced under Kimbrough. United States v. Jointer, 341 F. App'x 867, 2008
WL 4144869, at **2 (7 th Cir. Sept. 8,2008).

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DISCUSSION

Brown is not challenging any aspect of the execution of his sentence, such as
the computation of sentence credits or parole eligibility, issues which fall under the
purview of Section 2241. United States v. Jalili, 925 F.2d 889,894 (6th Cir. 1999).
Instead, Brown argues that his underlying conviction for conspiracy to distribute
crack cocaine was unconstitutional based on a case which the Seventh Circuit decided
after he was convicted and sentenced and because the federal prosecutor allegedly
engaged in prosecutorial misconduct. However, § 2241 is not the mechanism for
asserting such a challenge: 28 U.S.C. § 2255(a) provides the primary avenue ofrelief
for federal prisoners seeking relief due to an unlawful conviction or sentence, Terrell
v. United States, 564 F.3d 442, 447 (6th Cir. 2009), and is the mechanism for
collaterally challenging errors that occurred "at or prior to sentencing." Eaves v.

United States, 2010 WL 3283018, at *6 (E.D. Tenn. Aug. 17,2010).
Section 2255( e) provides a narrow exception to this rule, and permits a prisoner
to challenge the legality of his conviction through a Section 2241 petition, where his
or her remedy under Section 2255 "is inadequate or ineffective" to test the legality
of his detention. The only circumstance in which a prisoner may take advantage of
this provision is where, after his conviction has become final, the Supreme Court re­
interprets the terms ofthe statute petitioner was convicted ofviolating in such a way
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that petitioner's actions did not violate the statute. Martin v. Perez, 319 F.3d 799,
804 (6th Cir. 2003) ("A prisoner who can show that an intervening change in the law
establishes his actual innocence can invoke the savings clause of § 2255 and proceed
under § 2241."); Lott v. Davis, 105 F. App'x 13, 14-15 (6th Cir. 2004). This
exception does not apply where the prisoner failed to seize an earlier opportunity to
correct a fundamental defect in his conviction under pre-existing law, or did assert
his claim in a prior post-conviction motion under § 2255 but was denied relief.

Charles v. Chandler, 180 F.3d 753,756 (6th Cir. 1999); United States v. Prevatte,
300 F.3d 792, 800 (7th Cir. 2002).
A prisoner proceeding under § 2241 can use the savings clause of § 2255 if he
alleges "actual innocence," Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003);

Paulino v. United States, 352 F.3d 1056, 1061 (6th Cir. 2003), but actual innocence
requires factual innocence, not mere legal insufficiency. Bousley v. United States,
523 U.S. 614, 623-24 (1998); Hilliardv. United States, 157 F.3d 444, 450 (6th Cir.

1998); Reyes-Requena v. United States, 243 F.3d 893, 903-04 (5th Cir. 2001). To
make this showing, the movant must allege a new rule of law made retroactive by a
Supreme Court case, such as the type of claim raised in Bailey v. United States, 516
U.S. 137(1995). Townsendv. Davis, 83 F. App'x 728 (6th Cir. 2003); United States
v. Peterman, 249 F.3d. 458,461 (6th Cir. 2001).
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Brown can not make that showing for two reasons. First, Brown relies on
Colon in challenging his underlying drug conspiracy conviction, but that case was

decided by the Seventh Circuit Court of Appeals, not the United States Supreme
Court. As noted, a § 2241 petitioner attempting to advance an actual innocence claim
must point to a new rule oflaw made retroactive by the United States Supreme Court.
Second, even assuming that Colon substantively provided grounds to relieve
Brown ofhis drug conspiracy conviction, Brown has waited to long to assert a Colon­
based claim. Brown filed his first § 2255 motion in the sentencing court on August
18,2008. Admittedly, Colon was not decided until December 8, 2008, but Brown's
first § 2255 motion remained pending on the docket for over two months, until the
sentencing court denied it on February 18, 2009. During that two and one-half month
interim, Brown did not amend his first § 2255 motion to assert a claim based on
Colon. On December 31,2008, Brown moved to amend his first § 2255 motion to

assert additional claims alleging ineffective assistance of counsel. See Brown v.
United States, No.1 :08-CV-1117-LJM-DML [D. E. No. 20, therein] But Brown did

not assert a claim based on Colon, even though Colon had been decided over three
weeks before, on December 8, 2008. Further, after the sentencing court denied
Brown's first § 2255 motion, Brown filed numerous motions and other filings seeking

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to amend or set aside that order, see D. E. Nos. 24-26, 28-29 therein, but he again
failed to cite Colon as a basis for relief in any of those submissions.
Had Brown asserted a claim based on Colon while his § 2255 motion was
pending, or even had he cited Colon in any of his numerous post-judgment motions
and filings, the sentencing court could have considered the merits of that claim and
rendered a decision. But Brown did not bring Colon to the sentencing court's
attention when he had opportunities to do so while his first § 2255 motion was
pending.

The remedy provided under § 2255 is not rendered inadequate and

ineffective ifthe prisoner presented a claim in a § 2255 motion but was denied relief
on the claim, ifhe failed to assert a claim in his § 2255 motion, or ifhe was denied
permission to file a second or successive § 2255 motion. See Charles, 180 F.3d at

756-758; Rumler v. Hemingway, 43 F. App'x 946,947 (6th Cir. 2002); Bautista v.
Shartle, 2012 WL 11135 at *2 (N.D. Ohio Jan. 3, 2012).
Section 2241 is not an additional, alternative, or supplemental remedy to the
one provided in § 2255. Charles, 180 F.3d at 758. The burden is on the petitioner
to establish that the remedy under § 2255 is inadequate or ineffective, Martin, 319
F.3d at 804-05. Between December 8, 2008, and February 18,2009, Brown could
and should have amended his first § 2255 motion to assert a claim based on Colon,
but he did not do so.

Brown also could and should have asserted his Fifth
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Amendment claims alleging that the prosecutor engaged in varIOUS forms of
prosecutorial misconduct when he filed his first § 2255 motion, but he did not do so.
Thus, Brown can not demonstrate that as to his Fifth Amendment Colon claim, or his
Fifth Amendment claims alleging prosecutorial misconduct, his remedy under § 2255
was an inadequate means of challenging his underlying drug conspiracy conviction.
Finally, to the extent that Brown challenges his sentence, he can not proceed
under § 2241 for two reasons. First, the savings clause of § 2255 extends only to
petitioners asserting a claim ofactual innocence regarding their convictions, not their
sentences. See Peterman, 249 F 3d at 462; Marrero v. /ves, 682 F 3d 1190, 1193 (9th
Cir. 2012); Mackeyv. Berkebile, No. 7:12-CV-10-KSF, 2012 WL 4433316 (E.D. Ky.
Sept. 25,2012), aff'd, No. 12-6202 (6th Cir. March 15,2013); Thornton v. /ves, No.
6:11-CV-35-GFVT, 2011 WL 4586917, at *3 (E.D. Ky. Sept. 29,2011), aff'd, No.
12-5051 (6th Cir. Sept. 11,2012) (stating that allegations ofsentencing errors do not
qualify as claims of actual innocence under the savings clause); Johnson v. Cauley,
No. 09-52-HRW (E.D. Ky. 2009),aff'd,No. 09-5991 (6thCir. July 9, 201 0); Dismuke
v. United States, 2010 WL 2859079, at *4 (E. D. Ky., July 19,2010); McClurge v.

Hogsten, 2010 WL 2346734, at *4 (E. D. Ky., June 10,2010). Therefore, Brown may
not collaterally challenge his sentence in this § 2241 habeas proceeding.

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Second, to the extent that Brown may be attempting to argue that Kimbrough
applies retroactively to his case, his construed argument fails because Kimbrough
does not apply retroactively to cases on collateral appeal. Collier v. United States,
No. 1 :08~v-119, 2011 WL 703932, at *4 (E.D. Tenn. Feb.17, 2011); also see United
States v. Hairston, 4:08CV121 TSL-JCS2008 WL 5156466 (S.D. Miss. Dec. 8,2008)
(Kimbrough did not announce a new rule of law but rather reiterated the holding

announced in United States v. Booker, 543 U.S. 220, 268 (2005), which held that the
federal sentencing guidelines are advisory).
F or these reasons, Brown has not demonstrated that he is entitled to relief from
his conviction and sentence under § 2241. Brown's motion to amend his § 2241
petition will be granted, but his motion requesting permission to begin discovery will
be denied as moot. For the reasons set forth above, both Brown's original and
amended § 2241 petitions will be denied and this action will be dismissed.
CONCLUSION

Accordingly, IT IS ORDERED that:
1.

Demetreous A. Brown's motion to amend his 28 U.S.C. § 2241 petition

[D. E. No.9] is GRANTED, and the Clerk of the Court shall DOCKET Brown's
tendered amended § 2241 petition [D. E. No. 9-1] as an AMENDED PETITION;
2.

Brown's original § 2241 petition for a writ of habeas corpus [D. E. 1]
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and his amended § 2241 petition [D. E. No.9-I] are DENIED;
3.

Brown's motion seeking leave to commence discovery [D. E. No.7] is

DENIED as MOOT;

4.

The Court will enter an appropriate judgment; and

5.

This matter is STRICKEN from the active docket.

This May 6, 2013.

Stgned BY'
Henry R. VtfIhol Jr.
Jnited States Dtstnct Judge

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