Brown v. Terris

Filing 4

OPINION AND ORDER Dismissing re 1 Petition for Writ of Habeas Corpus filed by Roderick Brown. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RODERICK BROWN,
Petitioner,
CASE NO. 2:13-cv-11876
DISTRICT JUDGE SEAN F. COX
MAGISTRATE JUDGE LAURIE J. MICHELSON

v.
J.A. TERRIS,
Respondent.
______________________________/

OPINION AND ORDER DISMISSING THE HABEAS CORPUS PETITION
Petitioner Roderick Brown is an inmate at the Federal Correctional Institution in Milan,
Michigan. He recently filed a pro se habeas corpus petition under 28 U.S.C. § 2241. Brown is
challenging his federal convictions and sentence on grounds that (1) he was convicted and
sentenced for conduct that is not a federal crime and (2) his sentence was illegal. Because
Brown may not challenge his federal convictions and sentence under § 2241, his petition must be
dismissed.
I. BACKGROUND
Brown was charged in a nine-count indictment, which was filed in the United States
District Court for the Northern District of Georgia. In 2004, he pleaded guilty to the following
three counts: conspiracy to distribute cocaine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), and 846
(count 1); possession of cocaine with intent to distribute, 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B)(ii), and 851 and 18 U.S.C. § 2 (count 7); and possession of a firearm during a drug
trafficking crime, 18 U.S.C. § 924(c) (count 8). At the plea hearing, Brown agreed with the
following factual proffer made by the Government:

[I]n the summer of 2002 an agent or officers from the Dekalb County drug task
force began an investigation into the codefendant Gwendolyn Brown, and as part
of this investigation a Dekalb County police officer went undercover and began
purchasing cocaine from Gwendolyn Brown. It became apparent to them right
away that she was being supplied from somewhere, and during the course of the
investigation, specifically late in the summer, the undercover officer was present
when the defendant, Mr. Roderick Brown, delivered a quantity of cocaine to Ms.
Gwendolyn Brown . . . so that Ms. Gwendolyn Brown could then sell the cocaine
to the undercover officers. Once the officers were able to identify the defendant
Roderick Brown, they set up a deal with Gwendolyn Brown and at the same time
set up surveillance on Mr. Roderick Brown’s apartment in Smyrna, Georgia.
When the deal was set up, Ms. Gwendolyn Brown said she had to call her
supplier. She placed a phone call, which phone records indicated was placed to
Roderick Brown. The agents surveilling Mr. Brown’s apartment actually saw him
leave the apartment then right after the phone call was made, return to the
apartment, get a paper bag, bring it out to his car and leave on interstate county 20
to come to Dekalb County.
Police officers stopped Mr. Brown in his vehicle on interstate 20 just before he
got to the exit where Ms. Gwendolyn Brown was waiting. Inside his vehicle, in
the paper bag he had been seen carrying, was a quantity of cocaine, about 725
grams of powder cocaine. Additionally, in the vehicle with him was a Taurus 357
caliber revolver.
United States v. Brown, 346 F. App’x 481, 483 (11th Cir. 2009).
The trial court sentenced Brown to concurrent terms of ten years in prison for the
conspiracy and drug convictions (counts 1 and 7) and to a consecutive sentence of five years in
prison for the firearm conviction (count 8), for a total of fifteen years. Brown filed a pro se
notice of appeal, but the Federal Court of Appeals for the Eleventh Circuit dismissed the appeal
for lack of jurisdiction.
Brown subsequently filed a motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255. He challenged his sentence, the plea agreement, and his trial attorney’s
representation. The trial court initially denied the motion, but, following an evidentiary hearing
on Brown’s claim of ineffective assistance of counsel, the court granted Brown’s motion and
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vacated his sentence. At the subsequent re-sentencing hearing, the trial court imposed the same
sentence. Brown appealed, but the Court of Appeals for the Eleventh Circuit affirmed his
sentence. See Brown, 346 F. App’x at 481. In 2010, Brown filed a second motion to vacate
sentence, which remains pending in the Northern District of Georgia. See United States v.
Brown, No. 1:03-CR-00209 (N.D. Ga. Mar. 8, 2010).
On April 26, 2013, Brown filed his habeas corpus petition in this District. He claims that
the trial court imposed an illegal sentence on counts 1 and 7 and that he was convicted and
sentenced on count 8 for conduct that is not an offense under federal law.
II. DISCUSSION
A. Legal Framework
The primary mechanism for federal prisoners protesting the legality of their sentences or
claiming the right to release as a result of an unlawful sentence is a motion to vacate, set aside,
or correct the sentence under 28 U.S.C. § 2255. Terrell v. United States, 564 F.3d 442, 447 (6th
Cir. 2009); United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). A federal court may
not entertain an application for the writ of habeas corpus by a prisoner who is authorized to
apply for relief by motion to the court that sentenced him unless it “appears that the remedy by
motion is inadequate or ineffective to test the legality of [the prisoner’s] detention.” 28 U.S.C. §
2255(e).1 In other words, “a federal prisoner may file a § 2241 petition contesting the legality of
his detention only if his claim is such that he cannot obtain effective relief on direct appeal or
through a § 2255 motion.” Garcia-Echaverria v. United States, 376 F.3d 507, 510 (6th Cir.
2004).

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The quoted language is known as the “savings clause” of § 2255.
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Although “[i]t is the petitioner’s burden to establish that his remedy under § 2255 is
inadequate or ineffective,” Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999), Brown has
not alleged or otherwise shown why a motion under § 2255 is an inadequate or ineffective means
of challenging his convictions and sentence. Moreover,
[t]he unavailability of § 2255 relief does not alone establish inadequacy or
ineffectiveness under the savings clause. Th[e Federal Court of Appeals for the
Sixth Circuit] has clearly stated that “the § 2255 remedy is not considered
inadequate or ineffective simply because § 2255 relief has already been denied . .
. or because the petitioner is procedurally barred from pursuing relief under §
2255 . . . or because the petitioner has been denied permission to file a second or
successive motion to vacate[.]”
Peterman, 249 F.3d at 461 (quoting Charles, 180 F.3d at 756).
“The circumstances in which § 2255 is inadequate and ineffective are narrow . . . .”
Peterman, 249 F.3d at 461. “The savings clause may only be applied when the petitioner makes
a claim of actual innocence.” Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003).
“‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623 (1998). “To establish that he is actually innocent, [Brown] ‘must
demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror
would have convicted him.’” Martin v. Perez, 391 F.3d 799, 802 (6th Cir. 2004) (quoting
Bousley, 523 U.S. at 623).
B. Application
1. Count 8
Although Brown pleaded guilty to the charged offenses, he contends that the firearm
count (count 8) combined various elements of 18 U.S.C. § 924(c) and was worded in such a way
that the language cannot reasonably be construed to have charged him with a crime under federal

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law. Section 924(c) establishes penalties for
any person who, during and in relation to any . . . drug trafficking crime . . . for
which the person may be prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such crime, possesses a firearm . .
..
18 U.S.C. § 924(c)(1)(A). This statute “criminalizes two separate offenses - (1) using or
carrying a firearm during and in relation to a drug trafficking crime, and (2) possessing a
firearm in furtherance of a drug trafficking crime.” United States v. Combs, 369 F.3d 925, 931
(6th Cir. 2004) (emphasis in original). According to Brown, count 8 of his indictment “mixed
and matched” the “use” or “carry” prong and the “possession” prong of § 924(c) by charging
him with possession of a firearm “during and in relation to a drug trafficking crime.” He asserts
that there is no federal crime prohibiting “possession” of a firearm “during and in relation to” a
drug crime. What is prohibited is use or carrying a firearm “during and in relation to” a drug
trafficking crime or possession of a firearm “in furtherance of” a drug trafficking crime.
At the plea hearing, however, Brown agreed with the Government’s factual proffer,
which established that
(1) the government arranged a controlled drug transaction through Gwendolyn
Brown, a woman to whom Brown previously had sold drugs; (2) immediately
after the phone call with Gwendolyn Brown, officers saw Brown leave his
apartment with a paper bag and enter his car; (3) officers stopped Brown in his
vehicle just before he got to the interstate exit where Gwendolyn Brown was
supposed to be waiting; and (4) a search of Brown’s vehicle recovered the paper
bag he had been seen carrying, which contained about 725 grams of powder
cocaine, and a Taurus 357 caliber revolver.
Brown, 346 F. App’x at 490.
The Eleven Circuit concluded from these facts that Brown’s “conduct clearly [fell]
within and establishe[d] both of § 924(c)’s prongs.” Id. This Court agrees. The facts, as

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admitted by Brown at his plea, established that he possessed a firearm in furtherance of a drug
trafficking crime and that he was carrying a firearm during and in relation to a drug trafficking
crime. Consequently, Brown has not established that he is actually innocent of violating §
924(c) so as to permit review under § 2241 pursuant to the “savings clause” of § 2255.
2. Counts 1 and 7
Brown’s second and final claim pertains to his sentence for the conspiracy and drug
counts. He contends that the statutory penalty was five to forty years for the gun charge in
count 8, but the trial court improperly enhanced his mandatory minimum sentence of five years
to make it ten years. He also claims that the prosecution did not fulfill its promise to recommend
a sentence at the low end of the sentencing guidelines range of 57 to 71 months (4 years, 9
months to 5 years, 11 months).
“Claims alleging ‘actual innocence’ of a sentencing enhancement cannot be raised under
§ 2241.” Jones v. Castillo, 489 F. App’x 864, 866 (6th Cir. 2012), cert. denied, __ U.S. __, 133
S. Ct. 1632 (2013). Furthermore, Brown exercised opportunities to challenge his sentence on
appeal and in his motions under § 2255. Because Brown had prior opportunities to raise his
arguments, and because there has been no intervening change in the law or extraordinary
circumstances suggesting that he may be actually innocent of the crimes for which he was
sentenced, he is not entitled to challenge his sentence in a habeas petition under § 2241. Duke v.
Thomas, 8 F. App’x 498, 500 (6th Cir. 2001). “The remedy afforded under § 2241 is not an
additional, alternative or supplemental remedy to that prescribed under § 2255.” Id. at 501
(citing Charles, 180 F.3d at 758).
III. CONCLUSION

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Brown has not met his burden of proving that a § 2255 motion is an inadequate or
ineffective remedy to challenge his convictions and sentence. Accordingly, the petition for a
writ of habeas corpus [Dkt. #1] is summarily DISMISSED without prejudice pursuant to Habeas
Rule 4, which “allows the summary dismissal of a petition if ‘it plainly appears from the face of
the petition . . . that the petitioner is not entitled to relief in the district court.’” Martin v.
Overton, 391 F.3d 710, 714 (6th Cir. 2004).2 Finally, because a certificate of appealability is not
needed to appeal the denial of a habeas petition filed under § 2241 where detention is pursuant to
federal process, Witham v. United States, 355 F.3d 501, 504 (6th Cir. 2004), Brown need not
apply for one if he chooses to appeal this Court’s decision.

Dated: June 28, 2013

S/ Sean F. Cox
Sean F. Cox
U. S. District Court Judge

I hereby certify that on June 28, 2013, the foregoing document was served upon counsel of
record by electronic means and upon Roderick Brown by First Class Mail at the address below:
Roderick Brown #54662-019
Milan Federal Correctional Institution
Inmate Mail/parcels
P.O. Box 1000
Milan, MI 48160
Dated: June 28, 2013

S/ J. McCoy
Case Manager

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The rules governing cases under 28 U.S.C. § 2254 also apply to habeas petitions not
filed under § 2254. See Rule 1(b) of the Rules Governing Section 2254 Cases in the United
States District Courts.
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