The opinion
Case: 13-30173 Document: 00512465379 Page: 1 Date Filed: 12/09/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-30173 December 9, 2013
Summary Calendar
Lyle W. Cayce
Clerk
GERALD BROWN,
Petitioner-Appellant
v.
UNITED STATES OF AMERICA,
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:12-CV-674
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Gerald Brown, federal prisoner # 33360-013, was convicted of drug-
trafficking in the District of Wyoming. He filed a purported habeas petition
under 28 U.S.C. § 2241 in the Western District of Louisiana where he was
incarcerated. The district court construed the petition as a 28 U.S.C. § 2255
motion, dismissed it for lack of jurisdiction, denied Brown leave to appeal in
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 13-30173
forma pauperis (IFP), and certified that the appeal was not taken in good faith.
Brown now moves for leave to appeal IFP.
By moving for IFP, Brown challenges the district court’s certification
that the appeal is not taken in good faith. Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997); FED. R. APP. P. 24(a)(3)(A). We ask only “whether the appeal
involves legal points arguable on their merits (and therefore not frivolous).”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks
and citation omitted). We may rule on the merits or dismiss the appeal “where
the merits are so intertwined with the certification decision as to constitute the
same issue.” Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
Relying on United States v. Booker, 543 U.S. 220 (2005), and related
Supreme Court decisions, Brown contended that his sentence was unlawful.
Because he challenged his sentence, his petition was correctly construed as a
§ 2255 motion. See Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000).
Moreover, Brown does not show that his claims could be brought in a § 2241
petition under the savings clause of § 2255(e), because he does not establish
that any claim “‘is based on a retroactively applicable Supreme Court decision
which establishes that the petitioner may have been convicted of a nonexistent
offense’” and that the claim “‘was foreclosed by circuit law at the time when
the claim should have been raised.’” Padilla v. United States, 416 F.3d 424,
426 (5th Cir. 2005) (quoting Reyes-Requena v. United States, 243 F.3d 893, 904
(5th Cir. 2001)). The action was properly dismissed because the district court
lacked jurisdiction over the § 2255 motion, which could have been filed, if at
all, only in the district where Brown was convicted. See United States v.
Weathersby, 958 F.2d 65, 66 (5th Cir. 1992).
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Brown identifies no non-frivolous issue for appeal. His IFP motion is
DENIED and the appeal is DISMISSED. See Baugh, 117 F.3d at 202 & n.24;
5TH CIR. R. 42.2.
This is the second constructive § 2255 motion that Brown has incorrectly
presented as a habeas petition and filed in a court without jurisdiction.
Moreover, the Tenth Circuit rejected the underlying premise of his claims on
direct appeal years ago. United States v. Brown, 212 F. App’x 736, 741 (10th
Cir. 2007); see United States v. Brown, 556 F.3d 1108, 1109-11 & n.3 (10th Cir.
2009). This appeal is frivolous. Brown is warned that further frivolous
litigation will result in the imposition of monetary sanctions and limits on his
access to federal courts.
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