Brown v. Fisher

Filing 4

OPINION AND ORDER transferring case to the District of Minnesota. Signed by Judge Robert L Miller, Jr on 8/8/12. (smp) Modified on 8/10/2012 to change document type (smp). [Transferred from Indiana Northern on 8/10/2012.]

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TERRELL BROWN, a/k/a MARCUS
HOWARD,
PETITIONER,
VS.

SCOTT P. FISHER, WARDEN, FCI
SANDSTONE,
RESPONDENT.

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CAUSE NO. 3:12-CV-226-RLM

OPINION and ORDER

When Terrell Brown was sentenced in 2002 on cause 3:01-CR-100, the
court found him to be a career offender, as defined by U.S.S.G § 4B1.1
(November 2001 version). A career offender status requires findings that the
defendant was over 18, was being sentenced for a crime of violence or a
controlled substance offense, and had two prior felony convictions of either a
crime of violence or a controlled substance offense. The court found that these
conditions applied to Mr. Brown; he was 32 at the 2002 sentencing, was being
sentenced under 21 U.S.C. § 841(a)(1) for possession of cocaine base (crack),
had one prior felony conviction for possession of a dangerous substance, and
had another prior felony conviction for second degree reckless homicide. With
his sentence augmented by the career offender status, Mr. Brown received 360
months in prison.

Having long ago exhausted his direct appeals and having already filed a
motion under 28 U.S.C. § 2255, Mr. Brown recently filed an application with
the court of appeals to file a second or subsequent § 2255 motion, as required
under 28 U.S.C. § 2244(b)(3). In that application, Mr. Brown sought to argue
that the court shouldn’t have sentenced him as a career offender on the theory
that, when the court uses a prior crime of violence to make a career offender
status finding, that prior crime must include a mens rea of knowledge or
intent. One of Mr. Brown’s prior crimes, second degree reckless homicide,
required only recklessness as the mental state. Mr. Brown relied on the holding
in Begay v. United States, 553 U.S. 137 (2008) to put forth this theory, and
that case does announce this change in how prior crimes are viewed for career
offender status findings. The court of appeals found that Begay didn’t
announce a constitutional rule as would be required under 28 U.S.C. §§
2244(b)(2)(A) & 2255(h)(2) to allow a second or subsequent collateral attack.
For that reason, the court of appeals denied Mr. Brown the right to file a
second or subsequent § 2255 motion.
Even though the court of appeals denied Mr. Brown’s application, it
explicitly said, “We note, however, that the dismissal is without prejudice to
any attempt by Brown to obtain relief under Begay in an action pursuant to 28
U.S.C. § 2241. See United States v. Prevatte, 300 F.3d 792 (7th Cir. 2002); In re
Davenport, 147 F.3d 605 (7th Cir. 1998).”
Following this trail of breadcrumbs, Mr. Brown has filed a petition with
this court under 28 U.S.C. § 2241 asserting that the rule announced in Begay
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(regarding crimes of violence affecting one’s career offender status) applies to
him. While this court is the sentencing court and would be the appropriate
court in which to bring a § 2255 motion (see § 2255(a)), this court isn’t the
court with jurisdiction to consider § 2241 petitions; those petitions must be
brought in the court that has jurisdiction over the warden (that is, the district
in which the prison is located). See Garza v. Lappin, 253 F.3d 918, 921 (7th
Cir. 2001) (finding that, even when § 2241 is being used to challenge the
sentence, the action must be brought in the district of the prison). Mr. Brown
is incarcerated in the Federal Correctional Institution in Sandstone, Minnesota,
which is in the District of Minnesota and is outside the jurisdiction of this
Northern District of Indiana court.
The court can transfer a matter when it lacks jurisdiction and the
transfer would be in the interest of justice. 28 U.S.C. § 1631. The court
ORDERS the clerk transfer this cause to the District of Minnesota.
SO ORDERED.
ENTERED: August 8, 2012

/s/ Robert L. Miller, Jr.
Judge
United States District Court

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