govinfo:USCOURTS-mied-2_92-cr-81127-36

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
vs.
Crim. Case No. 92-CR-81127
GREGORY BROWN,
HON. AVERN COHN
Defendant/Petitioner.
_______________________________/
ORDER TRANSFERRING MOTION UNDER 28 U.S.C. § 2255 TO THE COURT OF
APPEALS FOR THE SIXTH CIRCUIT (Doc. 2258)
I.
This is 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2000 WL 876382 (June 20, 2000) (unpublished).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).
Thereafter, 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
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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).
Most 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).
This is 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 Cir. 1997).1
II.
1Under 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.
Because Brown has filed two prior motions under § 2255, the rule in In re Shelton does
not apply.
2
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Accordingly, 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. §§ 2255(h), 2244(3)(A).
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: January 11, 2017
Detroit, Michigan
3
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