The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FRANKIE BROWN, # 07617-025, )
)
Petitioner, )
)
vs. ) Case No. 20-cv-201-NJR
)
WARDEN, )
)
Respondent. )
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Petitioner Frankie Brown, an inmate in the Bureau of Prisons, filed a pro se pleading
invoking 28 U.S.C. §2241and the First Step Act.(Doc. 1).Brown is currently incarcerated at the
U.S. Penitentiary-McCreary, in Pine Knot, Kentucky, and was housed there at the time he filed
this case.
Brown seeks to be resentenced, asserting he is “entitled to relief d[ue] to the change with
the 922.g[.]” While Brown did not elaborate on this claim, the Court interprets his statement on
the“changingof law”regarding 18 U.S.C. §922(g)as referring to Rehaif v. United States, 139 S.
Ct. 2191 (2019). Brown also asks the Court to consider whether he is entitled to relief under the
First Step Act “because [he is] not a violent offender.” (Doc. 1).Brown later filed a motion seeking
the appointment of counsel and a prison transfer (Doc. 3), a letter construed as a supplement
(Doc.6),1 and amotion for status. (Doc. 7).
1 The Supplement (Doc. 6) raises complaints relating to the conditions of Brown’s confinement at USP-
McCreary. Such claims cannot be addressed in the context of a habeas corpus action, but instead must be
broughtin a civil rights case in the district of the prisoner’s confinement, pursuant to Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971).See Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991).
In 2018, Brown was convicted in this district court after pleading guilty to Distribution of
a Controlled Substance in violation of 21 U.S.C. §841(a)(1) and sentenced to 120 months’
imprisonment. United States v. Brown, Case No. 17-cr-30097-MJR (S.D. Ill. July 16, 2018,
Doc. 61). In 2019, he filed a motion under 28 U.S.C. §2255, challenging his sentence on the basis
of alleged ineffective assistance of counsel. The motion was denied on September 26, 2019. Brown
v. United States, Case No. 19-cv-1015-JPG (S.D. Ill.).
This matter is now before the Court for a preliminary review of the Petition. Rule 4 of the
Federal Rules Governing Section 2254 Cases in United States District Courts provides that upon
preliminary consideration by the district judge, “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify the petitioner.” Rule 1(b) gives this Court the
authority to apply the rules to other habeas corpus cases.
Brown’s Petition is not properly brought here under 28 U.S.C. §2241. A Section 2241
petition must be filed in the district where the prisoner is incarcerated, and Brown is in prison in
Kentucky, not the Southern District of Illinois. See United States v. Vitrano, 752 F. App’x 371,
373 (7th Cir. 2019).
Further, Brown fails to set forth a viable claim for relief based on Rehaif v. United States.
In Rehaif, the Supreme Court held that:
[I]n a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must
prove both that the defendant knew he possessed a firearm and that he knew he
belonged to the relevant category of persons barred from possessing a firearm. We
express no view, however, about what precisely the Government must prove to
establish a defendant’s knowledge of status in respect to other § 922(g) provisions
not at issue here.
Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). Brown was not charged or convicted of a
firearm offense under Section 922(g) – his offense was for drug distribution and involved an
entirely different statute, 21 U.S.C. §841(a)(1).
For these reasons, this Section 2241 habeas corpus case shall be dismissed.Because Brown
also seeks relief pursuant to the First Step Act, however, his Petition shall be filed in his criminal
case so that his claim may be addressed there under this Court’s procedures set forth in
Administrative Order 234 (Jan. 23, 2019). Those procedures provides for an evaluation of the
claim by the Federal Public Defender.
For these reasons, Frankie Brown’s Petition for a Writ of Habeas Corpus under 28 U.S.C.
§ 2241 (Doc. 1) is DISMISSED. This dismissal is without prejudiceto Brown pursuing his First
Step Act claim in his criminal case in this District, United States v. Brown, Case No. 17-cr-30097-
MJR. That case shall be reassigned to another District Judge due to the retirement of Judge Michael
J. Reagan.
All pending motions are DENIED AS MOOT.
The Clerk of Court is DIRECTEDto file Brown’s initial pleading (Doc. 1) in his criminal
case, United States v. Brown, Case No. 17-cr-30097-MJR, as a Motion for Relief under the First
Step Act of 2018.
If Brown wishes to appeal the dismissal of this action, his notice of appeal must be filed
with this Court within 60 days of the entry of judgment. FED.R.APP.P. 4(a)(1)(B). A motion for
leave to appeal in forma pauperis (“IFP”) must set forth the issues Brown plans to present on
appeal. See FED.R.APP.P. 24(a)(1)(C). If Browndoes choose to appeal and is allowed to proceed
IFP, he will be liable for a portion of the $505.00 appellate filing fee (the amount to be determined
based on his prison trust fund account records for the past six months) irrespective of the outcome
of the appeal. See FED.R.APP.P. 3(e); 28 U.S.C. §1915(e)(2); Ammons v. Gerlinger, 547 F.3d
724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v.
Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). A proper and timely motion filed pursuant to Federal
Rule of Civil Procedure 59(e) may toll the 60-day appeal deadline. FED. R. App. P. 4(a)(4). A Rule
59(e) motion must be filed no more than twenty-eight (28) days after the entry of the judgment,
and this 28-day deadline cannot be extended. Other motions, including a Rule 60 motion for relief
from a final judgment, do not toll the deadline for an appeal.
It is not necessary for Brown to obtain a certificate of appealability from this disposition
of his Section 2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).
IT IS SO ORDERED.
DATED: May 19, 2020
Tees ipoeieg?
NANCY J. ROSENSTENGEL
Chief U.S. District Judge