United States District Court, E.D. Michigan, Southern Division
ORDER TRANSFERRING MOTION UNDER 28 U.S.C. § 2255
TO THE COURT OF APPEALS FOR THE SIXTH CIRCUIT (DOC.
COHN UNITED STATES DISTRICT JUDGE.
a criminal case that has long since closed. In 1997,
defendant/petitioner Gregory Brown (Brown) was convicted by a
jury of (1) conspiracy to posses with intent to distribute
cocaine, in violation of 21 U.S.C. § 846 and §
841(a)(1), (2) intentional killing, aiding and abetting, in
furtherance of a continuing criminal enterprise (CCE), in
violation of 21. U.S.C. § 848(e)(1)(A), and 18 U.S.C.
§ 2, and (3) using or carrying a firearm in relation to
a drug offense, in violation of 18 U.S.C. § 924(c).
Brown was sentenced to life imprisonment. He appealed. The
Court of Appeals for the Sixth Circuit affirmed his
conviction and sentence. United States v. Brown, No.
97-1618, 2000 WL 876382 (June 20, 2000) (unpublished). The
United States Supreme Court denied certiorari. Brown v.
United States, No. 00-7007 (Dec. 11, 2000).
Brown filed multiple post conviction motions, including two
motions under 28 U.S.C. § 2255. See Docs. 1870,
1975. In 2002, the Court denied Brown's first motion for
lack of merit. (Doc. 1885). The Sixth Circuit declined to
grant Brown a certificate of appealability, thereby affirming
the denial of his motion. (Doc. 1901). As to Brown's
second motion, Doc. 1975, filed in 2006, the Court
transferred it to the Sixth Circuit as a successive petition.
(Doc. 1976). The Sixth Circuit dismissed the case for lack of
prosecution. (Doc. 1961).
recently, on November 17, 2016, Brown filed a “Motion
to Vacate, Set Aside or Correct Sentence under §
2255.” (Doc. 2258). Brown contends that he is entitled
to relief on the grounds that his sentence was imposed for
“juvenile crimes” and therefore violates the
Supreme Court's decisions in Montgomery v.
Louisiana, 136 S.Ct. 718 (2016) and Miller v.
Alabama, 132 S.Ct. 2455 (2012).
Brown's third motion under § 2255. Under §
2244, “[b]efore a second or successive application
permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for
an order authorizing the district court to consider the
application.” 28 U.S.C. § 2244(b)(3)(A). A
district court is required to transfer to the Sixth Circuit
any second or successive petition for habeas relief filed in
the district court without authorization, pursuant to 28
U.S.C. § 1631. In re Sims, 111 F.3d 45, 47 (6th
because Brown's motion cannot be filed in the Court
without permission from the Sixth Circuit, the Clerk of Court
shall TRANSFER this motion to the Sixth Circuit to be
considered as a motion for an order authorizing the district
court to consider the application. 28 U.S.C. §§
Under the rule set forth in In re
Shelton, 295 F.3d 620 (6th Cir.2002), a district court
normally must provide notice to the movant and an opportunity
to withdraw the motion before recharacterizing a motion as a
§ 2255 motion. Id. at 622. However, the Sixth
Circuit has held that “when . . . a movant has
previously filed a § 2255 motion, the rule of In re
Shelton is of no consequence.” In re
Nailor, 487 F.3d 1018, 1023 n.3. ...