DEMETREOUS A. BROWN, Petitioner,
MICHAEL SEPANEK, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
HENRY R. WILHOIT, Jr., District Judge.
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.Appx. 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.
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-0082-01 (S. D. Ind. 2005) The Seventh Circuit Court of Appeals affirmed Brown's conviction and sentence. United States v. Brown, 230 F.Appx. 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. 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 of his Fifth Amendment right to due process of law. [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 XXXX-XXXX Judgments." [D. 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 of the federal sentencing guidelines and further reductions of his 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 of the dealer's narcotics trafficking conspiracy. Id., at 571-72. Brown states that his drug conspiracy 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 of a drug conspiracy. Brown argues that pursuant to Colon, he is actually innocent of conspiring with intent to distribute more than 50 grams of crack and more than five kilograms of a substance containing cocaine in violation of § 846.
Brown also alleges that he is actually innocent of the sentence he received. On direct appeal, the Seventh Circuit rejected Brown's challenge to the sentencing court's use of the "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 ...