In Re: Brown v.

Fourth Circuit

In Re: Brown v.

55 F. App'x 705

CourtCourt of Appeals for the Fourth Circuit

DecidedFebruary 13, 2003

Docket02-7857

StatusUnpublished

Cited by1 cases

This text of 55 F. App'x 705 (In Re: Brown v.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In Re: Brown v., 55 F. App'x 705 (4th Cir. 2003).

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Opinion

PER CURIAM.

Dovon Brown, a federal inmate, filed this petition for a writ of error seeking to have this court recall its mandate dismissing the appeal of the denial of his motion to vacate sentence under 28 U.S.C. § 2255 (2000). See United States v. Brown, No. 00-7254, 2000 WL 1707272 (4th Cir. Nov. 15, 2000) (unpublished). In the alternative, Brown requests that this court allow him to file a petition under 28 U.S.C. § 2241 (2000). In his petition, Brown alleges that his conviction and sentence are unconstitutional under the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and this court’s cases applying Apprendi. Brown has failed to demonstrate extraordinary circumstances justifying recall of the mandate. See Calderon v. Thompson, 523 U.S. 538, 549-50, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). Moreover, we have held that Apprendi is not retroactively applicable in a § 2241 petition. See San-Miguel v. Dove, 291 F.3d 257, 261 n. 2 (4th Cir.2002). Accordingly, although we grant leave to proceed in forma pauperis, we deny Brown’s petition for writ of error. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

PETITION DENIED.

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PER CURIAM.

Dovon Brown, a federal inmate, filed this petition for a writ of error seeking to have this court recall its mandate dismissing the appeal of the denial of his motion to vacate sentence under 28 U.S.C. § 2255 (2000). See United States v. Brown, No. 00-7254, 2000 WL 1707272 (4th Cir. Nov. 15, 2000) (unpublished). In the alternative, Brown requests that this court allow him to file a petition under 28 U.S.C. § 2241 (2000). In his petition, Brown alleges that his conviction and sentence are unconstitutional under the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and this court’s cases applying Apprendi. Brown has failed to demonstrate extraordinary circumstances justifying recall of the mandate. See Calderon v. Thompson, 523 U.S. 538, 549-50, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). Moreover, we have held that Apprendi is not retroactively applicable in a § 2241 petition. See San-Miguel v. Dove, 291 F.3d 257, 261 n. 2 (4th Cir.2002). Accordingly, although we grant leave to proceed in forma pauperis, we deny Brown’s petition for writ of error. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

PETITION DENIED.

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