United States District Court, E.D. Arkansas, Eastern Division
GEORGE E. BROWN Reg. #32507-044 PLAINTIFF
GENE BEASLEY, Warden, Forest City Low, Forrest City, Arkansas DEFENDANTS
Procedure for Filing Objections:
Recommended Disposition (Recommendation) has been sent to
Chief Judge Brian S. Miller. Mr. Brown may file written
objections with the Clerk of Court. To be considered,
objections must be filed within 14 days. Objections should be
specific and should include the factual or legal basis for
Brown does not file objections, he risks waiving the right to
appeal questions of fact. And, if no objections are filed,
Chief Judge Miller can adopt this Recommendation without
independently reviewing the record.
August 2006, a jury convicted petitioner George E. Brown on a
single count of possession-with-intent-to-distribute five
grams or more of cocaine base. Brown v. United
States, No. 1:17-CV-103 RLW, 2017 WL 2672626, at *1
(E.D. Mo. June 20, 2017). He was originally sentenced to 240
months' imprisonment. Id. (citing United
States v. Brown, 1:05-CR-178 RLW (E.D. MO.)). Mr.
Brown's conviction and sentence were affirmed on appeal.
United States v. Brown, 499 F.3d 817 (8th Cir.
the United States Sentencing Guidelines relating to crack
cocaine were amended, the sentencing court reduced Mr.
Brown's sentence to 192 months' imprisonment.
Brown, 2017 WL 2672626 at *1. He appealed that
sentence, and it was affirmed. United States v.
Brown, No. 09-2423 (8th Cir. Mar. 26, 2010). On October
18, 2011, petitioner's sentence was further reduced to
144 months' imprisonment. Brown, 2017 WL
2672626, at *1.
Brown was released to supervision on September 5, 2014, for a
term of eight (8) years. Id. His supervised release
was revoked, however, on November 2, 2016, and he was
sentenced to a 60 months' imprisonment. Id.
Brown is currently serving his sentence in the Bureau of
Prison (“BOP”) at the Forest City Low
(“FCL”) facility in Forrest City, Arkansas. Mr.
Brown attaches documents to his petition indicating that he
has used the BOP's administrative process to request
removal of two points from his custody level for a history of
violence. (Docket entry #1 at 12-20)
August 4, 2018, Mr. Brown filed a petition for writ of habeas
corpus under 28 U.S.C. § 2241, challenging the BOP's
calculation of his custody level. (#1 at 2) He complains that
two points were added to his custody level because his
pre-sentence report (“PSR”) included a 1984
charge for resisting arrest. (#1 at 3-7) Mr. Brown argues
that the BOP is without sufficient information to determine
whether the charge was a violent offense. (#1 at 3-7, 23) He
further argues that the BOP should not use the prior charge
to enhance his custody level because the sentencing court did
not use the charge to enhance his sentence. He maintains that
the BOP's use of the prior charge to determine his
custody level is “an act of double counting or
impermissibly piling on.” (#1 at 7-10) Mr. Brown asks
the Court to “order the Warden/BOP to remove the
finding of serious violence and the finding of 14 criminal
history points from his male custody classification
form.” (#1 at 10-11)
of habeas corpus “is an attack by a person in custody
upon the legality of that custody, and . . . the traditional
function of the writ is to secure release from illegal
custody.” Preiser v. Rodriguez, 411 U.S. 475,
484 (1973). Habeas corpus is the appropriate remedy when a
claim “goes directly to the constitutionality of
physical confinement or the shortening of its
duration.” Id. at 489. On the other hand,
“constitutional claims that merely challenge the
conditions of a prisoner's confinement . . . fall outside
of that core.” Nelson v. Campbell, 541 U.S.
637, 643 (2004); see also Levi v. Ebbert, 353 Fed.
App'x 681, 682 (3d Cir. 2009) (claims concerning the
determination of a federal prisoner's custody level do
not lie at the core of habeas corpus and are not cognizable
in a' 2241 petition).
Mr. Brown does not attack the legality of his custody; he
does not allege a problem in the BOP's calculation of his
sentence; and he does not allege that he is entitled to early
release from custody. Instead, he complains that his custody
level has resulted in his placement in a facility that
“does not have the type of resources available for a
person such as Petitioner.” (#4 at 3) A prisoner,
however, has no justifiable expectation that he will be
incarcerated in any particular facility, even though the
degree of confinement in one facility may be different from
that in another. Olim v. Wakinekona, 461 U.S. 238,
245 (1983); see also Sessel v. Outlaw, No.
2:08-CV-212 JMM, 2009 WL 1850331, at *6 (E.D. Ark. 2009).
extent Mr. Brown is complaining about his
conditions-of-confinement, the Court gave Mr. Brown the
opportunity to convert his petition to a civil rights action
under Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971). (#3) Mr. Brown
objected to the Court's order and reiterated that his
sentence is being “executed improperly as he is not
properly placed within the BOP facilities.” (#4 at 3)
Because Mr. Brown does not wish to convert his case and pay
the filing fee, his case should be dismissed, without
prejudice, for lack of jurisdiction. See Spencer v.
Haynes, 774 F.3d 467, 468-471 (8th Cir. 2014) (remanding
case filed under § 2241 and dismissed without prejudice
for lack of jurisdiction to give the petitioner the
opportunity to convert the case to a civil rights complaint
Mr. Brown challenges the conditions of his confinement,
rather than the execution of his sentence, this Court lacks
jurisdiction over his claims. Accordingly, the Court
recommends that George Brown's petition for writ of
habeas corpus ...