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Terrell Brown A/K/A Marcus Howard v. Donna Zickefoose

August 15, 2011

TERRELL BROWN A/K/A MARCUS HOWARD
PETITIONER,
v.
DONNA ZICKEFOOSE, RESPONDENT.



The opinion of the court was delivered by: Robert B. Kugler United States District Judge

MEMORANDUM OPINION AND ORDER

This matter comes before the Court upon Petitioner's submission of application seeking § 2241 habeas corpus relief ("Petition"), and it appearing that:

1. While the legal issues presented by the Petition are not complex, the procedural history of Petitioner's prior applications filed in this District and other federal courts requires a detailed review.

a. On November 8, 2011, a criminal complaint was filed in the United States District Court for the Northern District of Indiana ("District of Indiana") against Petitioner and certain Eric J. Edwards and Akimie L. Gale; that complaint gave rise to the United States of America v. Edwards et al., Crim. Action No. 01-0100 (RLM) (N. D. Ind.), proceedings. In 2002, Petitioner was convicted on a panoply of drug-related offenses. See id. Docket Entry No. 75. On September 10, 2002, Petitioner was sentenced on the basis of these offenses, see id.; apparently, in light of Petitioner's prior conviction (rendered, seemingly, by a state court in Wisconsin, on the grounds of a vehicular homicide committed by Petitioner), Petitioner was sentenced to an enhanced sentence. See id., Docket Entries No. 76-78.

b. Petitioner appealed (either his conviction or his sentence, or both) to the United States Court of Appeals for the Seventh Circuit ("Seventh Circuit"), see id., Docket Entry No. 79, and the Seventh Circuit affirmed the District of Indiana determination. See id. Docket Entry Nos. 98.

c. On the date of the aforesaid affirmance, Petitioner filed his § 2255 motion, that motion was later amended and, following that amendment, duplicated once again. See id. Docket Entries Nos. 97, 100 and 105. On June 29, 2004, the District of Indiana denied Petitioner's § 2255 motion. See id., Docket Entry No. 123.

d. On July 15, 2004, Petitioner appealed denial of his § 2255 motion, see id., Docket Entry No. 124; that appeal was dismissed by the Seventh Circuit on April 5, 2005. See id., Docket Entry No. 136. Following this dismissal, Petitioner filed a fleet of applications with the District of Indiana, including another § 2255 motion and an application for correction of sentence under Fed. R. Crim. P 35. See id., Docket Entries Nos. 137 and 141. On February 6, 2006, the District of Indiana dismissed Petitioner's latest § 2255 motion for want of jurisdiction, as second/successive. See id., Docket Entry No. 142. Petitioner immediately moved for reconsideration, which too was denied. See id., Docket Entries Nos. 143 and 144.

e. Two years went by and, in February 2008, Petitioner moved for "crack-cocaine" re-sentencing. See id., Docket Entries No. 163 and 172. On June 5, 2008, Petitioner's application to that effect was also denied by the District of Indiana. See Docket Entry No. 173.

f. On November 16, 2011, Petitioner filed a § 2241 habeas petition in this District, see Howard v. United States, Civ. Action No. 10-5977 (RBK) (NJD); in that petition he asserted that the sentence enhancement applied by the District of Indiana to Petitioner's federal sentence (ensuing from his conviction on drug-related offenses) was improper because, in light of the holding of Begay v. United States, 553 U.S. 137 (2008), Petitioner's conviction rendered by Wisconsin state court (on the grounds of Petitioner's vehicular homicide) should not have operated as a valid basis for enhancement of Petitioner's federal sentence. See id., Docket Entry No. 1.

g. However, in April 2011, Petitioner informed this Court that he wished to withdraw his § 2241 petition because he applied to the Seventh Circuit for leave to file second/successive § 2255 application asserting the very same Begay-based challenges. See id., Docket Entry No. 3. Correspondingly, this Court granted Petitioner's request for withdrawal, while stressing that the Court's determination shall not be construed as expressing the Court's opinion about substantive or procedural validity of invalidity of Petitioner's § 2241 petition or his new § 2255 endeavors. See id., Docket Entry No. 4.

h. Shortly thereafter, Petitioner filed the Petition at bar, see Instant Matter, Docket Entry No. 1; the Petition asserted the very same Begay-based challenges (i.e., Petitioner alleged that the District of Indiana improperly enhanced Petitioner's sentence on the basis of Petitioner's Wisconsin state conviction). See id. Petitioner also alleged that this Court has Section 2241 jurisdiction to hear Petitioner's challenges, see id.; in support of that assertion Petitioner relied on the order he received from the Seventh Circuit in response to his application for leave to file second/successive § 2255 motion. See id., Docket Entry No. 1, at 18. Specifically, that order read:

Terrell Brown has filed an application pursuant to 28 U.S.C. § 2244(b)(3), seeking authorization to file a successive collateral attack under § 2255. Brown proposes an attack on the sentencing court's career offender determination in reliance on Begay v. United States, 553 U.S. 137 (2008). But Begay does not announce a constitutional rule as is required for authorization under § 2244(b)(2)(A) & 2255(h)(2). See Welch v. United States, 604 F.3d 408 (7th Cir. 2010) (Chambers v. United States, 555 U.S. 122 (2009), and Begay announce substantive rules, not rules arising from the Constitution). Accordingly, We DENY authorization and DISMISS Brown's application. 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). Id. (capitalization in original).

i. The Petition at bar contains extended discussion as to why, in Petitioner's opinion, this Court has § 2241 jurisdiction to grant him relief. See generally, Instant Matter, Docket Entry No. 1. There appears to be no doubt that Petitioner's position to that effect derives directly from the second paragraph of the above-quoted Seventh Circuit order.

2. While, in light of the second paragraph of the above-quoted Seventh Circuit order, there is little wonder why Petitioner is under impression that his application is properly filed with this Court under Section 2241, Petitioner errs. This Court is without jurisdiction under ยง 2241 to entertain the Petition. A court presented with a petition for writ of habeas corpus "shall forthwith award the writ or issue an order directing the respondent to show cause why the writ ...


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