NOT RECOMMENDED F OR P UBLICATION F ile Nam e: 12a0744n.06 No. 09-6337 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT ROBERT L EE B ROWN, ) ) Petitioner-Appellant, ) ON APPEALFROM THE ) UNI TED STATES DI STRI CT ) COURT FOR THE WESTERN v. ) DI STRI CT OF KENTUCKY ) KENTUCKYPAROL E BO ARD, ) ) Respondent-Appe llee. )

BEFORE: G IBBO NS and SUTTO N, Circ uit Jud ges; DU GGAN, Distr ict Judge * DUG GA N, District Judge

. Petitioner-Appellant Robert L ee Br own (“B rown” ) appea ls the district court’s de nial of his application for a wr it of habea s corpus pursua

nt to 28 U.S.C . § 2254. Br own has been g rante d a cer tificate of appea lability as to a claim alleg ing ineffe ctive assistance of trial counsel, in which he asser ts that his counse l was ineffe ctive in advising him to enter a plea ag ree ment in state court providing for concur rent state and fede ral s entenc es which was an impossibi lity b ec au s e Br own had not y et pleade d guilty and been sentenc ed in fede ral court. Be cause there is no relief available to Br own under § 2254, we aff irm the district court’s dismiss al of his reque st for habe as cor pus relief

. I

.

The Honorable Patrick J

. Dug g an, United States District J udg e for th e E as tern District of * Michig an, sitting by

desig nation.No. 09-6337

Brown v. Ky. Parole Bd. In 1993, a J eff

erson County (K en t u ck y) g rand jury and a fede ral g rand jury sitti ng in the Western Di s t ri ct of Kentucky separ ately indicted Br own for crimes rela ted to a string of bank rob berie s. In August 1993, Br own pleade d guilty in J eff erson County Circuit Court to various counts pursuant to a plea ag ree ment. In exchang e for his guilty plea, Br own was promised a total sentenc e of forty -two (42) y ear s to r un concur rent with his fede ral sentenc e. Howeve r, when the state court sentenc ed Br own on August 23, 1994, the court neg lect ed t o i n dicate that the sentenc e was “conc urre nt” with the fe dera l sentence

. Br own did not plead guilty in fede ral district c ourt until F ebrua ry 17, 1994. On September 6, 1994, the district court enter ed a jud gment sentenc ing Br own to one hundred and six ty (160) months’ imprisonment, to run consecutive to B rown’s state court sente nce. In 1996, Br own moved the state trial court to “ clar ify and enfor ce judgme nt” to r efle ct that the state a nd fede ral sente nces w ere to run conc urre ntly and to orde r his rele ase to fe dera l custody

so that he could serve his fede ral sente nce f irst. On August 20, 1996, the Kentucky Circuit Court

o rd er ed Br own’s state sentenc e to run concur rent with his fede ral sentenc e; howeve r, the court denied his reque st for rele ase to fede ral custody , stating t h at “t h e site of the Def endant’ s incar cer ation is at the discretion of the [Kentucky ] Depa rtment of Correc tions, or the Fe dera l Bur eau of Correc tions, when appropr iate.” (R. 1-3 at 5.) On the same date, the state court enter ed an

amen d ed judgme nt ref

lecting the “conc urre nt” sentenc e. Br own did not appea l the state court’s order

. On September 22, 1997, Br own filed a motion in the J eff erson County Circuit Court arguing that he had to be rele ased into fede ral custody to rec eive the benef it of the concur

rent sentenc e. -2-No. 09-6337

Brown v. Ky. Parole Bd. Br own additional l y argue d that he rec eived ineffe ctive assistance of counsel in relation to his decision to plead guilty in the state court proce eding s. The circ uit court judge deni ed t h e motion afte r an evidentiar

y hear ing, reasoning that the sentenc es alre ady had been order ed to run

concur rently and the court lacke d jurisdiction to g rant the additional relief soug ht. The court did not addre ss Brown’s ineff

ective a ssistance of c ounsel claim. B rown a ppeale d. In a decision issued August 31, 2001, wh i ch also did not addre ss Br own’s ineffe ctive assistance of counsel claim, the Kentucky Court of Appea ls held that Br own’s plea ag ree ment and sentenc e could not be perf ormed because the s tate judgment was imposed pr ior to the entry of the fede ral sentenc e: “it was err or for the J eff erson Circuit Court to sentenc e [Brown] to concur rent state and fede ral ter

ms prior to his sentencingby the fe dera l court.” (R. 1-3 at 17.) The appellate court conclude d, howeve r, that it had no authority over the fe d er al judge or any subsequent sentenc ing court which sentenc ed Br own afte r the Kent u ck y C i rc uit Court and could not “dictate wher e a prisoner should serve his time or which time should be serve d first.” ( Id .) There fore , to eff

ectuate the plea ag ree ment, the Kentucky Court of Appea ls rema nded the matter to the circ uit court with instructions to reduc e Br own’s sentenc e by the leng th of his fede ral sentenc e (160 months). Br own soug ht discretionar

y revie w in the Kentucky Supreme Court, which the Court denied on August 13, 2003. In the interim, Br own had filed a fede ral habea s corpus petition pursuant to 28 U.S.C. § 2241 in the District Court for the Western District of Ke ntucky , dated Septembe r 18, 2001, in which he challeng ed the state courts’ ref usal to transfe r him to fede ral custody

. Bro wn ar gued that his due proce ss r ights wer e violated by (1) the State’s failure to transfe r him to fede ral custody so his state -3-No. 09-6337

Brown v. Ky. Parole Bd. and fede ral sentenc es would run concur rently , and (2) the fede ral g overnme nt’s failure to cre dit the time serve d in state custody ag ainst his fede ral sentenc e. The United States resp o n ded to the petition, contending that the fede ra l court sentenc ed Br own proper ly and that Br own had no constitutionally protec ted liberty interest in a concur rent sentenc e, cre dit f

or the time se rved in the State’s custody , or immediate transfe r to fede ral custody

. The State also responde d, adding that the Kentucky Court of Appea ls had alre ady provided an appropr iate reme dy by reduc ing Br own’s state sentenc e by the leng th of his fede ral sentenc e. The fede ral district court denied the petition on April 19, 2002, concluding t h at Br own failed to demonstrate that he was in custody in violation of the Constit ution or laws of the United States as re quired to obtain re lief under § 2241. (R. 11-4.) On J une 24, 2002, Br own was parole d from his state sentenc e and transfe rre d to fede ral custody to serve his fede ral sentenc e. On August 26, 2002, a panel of this Court denied Br own a

cer tificate of appea lability

with respec t to the denial of his § 2241 petition. Brown v

. Ky. Dep’ t of Corr. , No. 02-5644 (6th Cir. Aug

. 26, 2002). On or about November 26, 2003, the J eff erson County Circuit Court re- sentenc ed Br own pursuant to the Kentucky Court of Appea l s ’ rema nd order

. Br own filed an application for habea s corpus relief pursuant to § 2254 in the District Court for the Western District of Kentucky on November 29, 2004. The petition was dated November 23, 2004. As g rounds for relief , Brown argued that (1) his plea was not knowing ly , voluntarily , and intelligently enter ed beca

use the g overnme nt violated the terms of the plea agree ment; and (2) he was denied the eff

ective ass i s t an ce of counsel beca use counsel allowed him to plead guilty to a plea ag ree ment that was im possible to fulfill. The dist rict court transfe rre d the petition to this court a s a second or successive petiti on; however , a pane l of this Court conclude d that it was not a second -4-No. 09-6337

Brown v. Ky. Parole Bd.

or succe ssive petition and rema nded the case to the district cou rt for further proce eding s. In re Robert Lee Brown , No. 06-6135 (6th Cir. June 5, 2007). On re m and, the case was ref err ed to a mag istrate judge who rec ommended that it b e dismiss ed as untimely or, alterna tively , on its merits beca

use Br own’s constitutional rig hts had not been violated. The district c ourt dismiss ed the petition, c oncluding that it was not time-barr ed but that the Constit ution does not require a defe ndant to be acc urate ly informed about parole elig ibilit y to rende r his or her plea voluntary

. The district court conclude d that, as a result of the state court’s reduc tion of his or igina l se ntence by the leng th of his sentence , Br own “g ot what he ba rg ained f or [when he plea ded guilty ], i .e., a total se ntence of 42 year s.” Br own soug ht a cer

tificate of appea lability from this Court, asser ting as an additional g round for relief that his se ntence violates his Eighth Amendment rig hts. As indicated e arlier , Br own has been grante d a ce rtificate of appe alability only as to his ineffe ctive assistanc e of c ounsel claim. I I

. This Court revie ws a district court’s decision in a habea s corpus proce eding de novo . W olfe

v. Brigano , 232 F.3d 499, 501 (6th Cir. 2000). Under the Antiterror ism and Effe ctive Death Penalty Act (“A EDPA”), habea s corpus relief is available pursuant to § 2254 wher e a state court’s decision: (1) resulted i n a d ec ision that was contra ry to, or involved an unrea sonable application of, clea

rly established Fe dera l law, as deter mined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an u n re as o n able deter mination of the fac ts in li g ht of the evide nce pr esente d in the State court proc eeding

.

-5-No. 09-6337

Brown v. Ky. Parole Bd. 28 U.S.C. § 2254(d). This provision, howeve r, only applies to habea s claims that wer e “adjudicated

on the merits in State court

. . . .” Id

. Where the state court did not assess the merits of a claim proper ly raised in a habea s petition, the g ener al defe renc e due to the state court’s decision pursuant to the AEDPA is not applicable. Maples v. Ste gall , 340 F.3d 433, 436 ( 6th Cir. 2003). The Kentucky state courts never addre ssed t he merits of Brown’s ineffe ctive assist ance of counsel c laim. I I I

. Br own enter ed his guilty plea in state court with the u n d er s t an d ing that he was being promised concur

rent state and fede ral sentenc es and, there fore , the leng th of his total sentenc e would be shorter. The promise of concur rent sentenc es was meaning less, howeve r, as the fede ral court was authorized, as it did, to impose a fede ral sentenc e consec utive to the state sentenc e. There is no indication in the rec ord that Br own was advised of this risk or the principles of dual sovere ignty so that he could appre ciate that neither the state plea ag ree ment nor the state court’s sentenc e could bind t h e fede ral court. Under these circ umstances, courts have held that a defe ndant’s guilty plea wa s unconstitutional beca

use i t was not k n o wi n g, intelligent, and voluntary and because the failure of defe nse counsel to advise the defe ndant of the risk constituted ineffe ctive assistance of counsel. See, e.g., W arner v. United States , 975 F.2d 1207, 1211, 1213-14 (6th Cir. 1992), cert. denied 507 U.S. 932, 113 S. Ct. 1314 (1993) (upholding the district court’s grant of habea s corpus to the petitioner pursuant to § 2254, finding that the p et i t i o n er was denied eff ective assistance of counsel in state p ro ce eding s wher e his attorney rec ommended that he acc ept the State’s plea offe r prom i s i n g

concur rent state and federa l sentenc es, l eading him t o believe that the federa l district court would -6-No. 09-6337

Brown v. Ky. Parole Bd. be bound to impose a concur rent sentenc e, but the fe d er al court instead imposed a consec utive sentence); Finch v. Vaughn , 67 F.3d 909, 915-17 (11th Cir. 1995) (finding that the petitioner

rec eived err oneous advice from his trial counsel and the state trial judge reg arding whether his state and federa l sentenc es would run concurre ntly , resulting in the denial of t he ef fec tive assistance of counsel and a p l ea t hat was not knowing and intelligent) ; see also Montoya v. Johnson , 226 F.3d 399, 407 (5th Cir. 2000) , cert. denied 532 U.S. 1067, 121 S. Ct. 2220 (2001) (apply ing defe rential revie w under

AEDPA to find the defe ndant’s plea pursuant to a n ag ree ment promising concur rent sentenc es valid wh ere the state court explained to the defe ndant that it could not bind the fede ral judge ; but indicating that, if the court revie wed the cl ai m d e n ovo, fede ral habea s relief arguably might be war

rante d beca

use the state court judge went on to say : “what I am say ing is that

. . . y ou will be g iven cr edit on this sentence w ith the time y ou serve in fede ral c ourt.”). Neve rtheless, t h ere no longe r is a reme dy available to Br own throug h these § 2254 proce eding s wher e he alre ady has serve d his state sentenc e and there fore is not seeking to have his state conviction or sentenc e set aside. Br own instead is asking the Court to reduc e the leng th of his fede ral sentenc e. Br own is corr ect that 28 U.S

. C

. § 2243 instructs courts to “dispose of” an 1 application for a writ of habea s corpus “as law and justice require .” Fur ther, the Supreme Court has advised that “re medies should be tailored to the injury suffe red [by a criminal defe ndant] fr om the

At oral argument, Br own’s counsel sug g est ed t h at relief could be provided to Br own by 1 reduc ing the leng th of his state parole

. Whil e this panel does not believe that it has the authority to provide such relief

, it encour ag es the State to consider this option as a means to reme dy the violation of Br own’s constitutional rig hts, particula rly as the prior reme dy order ed by the Kentucky Court of Appea ls in fact provide d no rea l remedy to Brown. -7-No. 09-6337

Brown v. Ky. Parole Bd. constitutional violation.” United States v. Morrison , 449 U.S. 361, 364, 101 S. Ct. 665, 668 (1981). Neve rtheless, this Court has no power in these § 2254 proce eding s to dictate a reme dy with respe ct to Br own’s federal conviction and/or sentenc e for a constitutional violation arising in the state court. A fede ral prisoner challeng ing his f eder al detention must do so through a motion under 28 2 U.S.C. § 2255 (whe n challeng ing the leg ality of the detention) or an application for a writ of habea s corpus pursuant to 28 U.S.C. § 2241 (whe n challeng ing the manner or execution of the sentenc e or wher e it appea

rs that the reme dy by motion is inadequa te or ineffe ctive to tes t t h e l ega lity of his detention). See W

ooten v. Cauley , 677 F.3d 303 (6th Cir. 2012) (citing United States v. Peterman , 249 F.3d 458, 461 ( 6th Cir. 2001) and 28 U.S.C. § 2255(e))

. As set forth in the previous section, Br own filed a petition pur suant to 28 U.S.C. § 2241 in which he soug ht, inter alia , an order requiring the Bur eau of Prisons to cre dit the time he serve d on his state sentenc e ag ainst his fede ral sentenc e. The district court denied the petition, holding that no statute, treaty , or the Constit ution require d Br own’s transfe r to fede ral custody

. A panel of this Court denied Br own a cer

tificate of appea lability when he soug ht to appea l this decision. I t now is binding with respec t to Brown’ s reque st for the same relief under § 2254. Acc ording ly , we a ffirm the district c ourt’s dec ision.

Moreove r, the party with the authori t y t o execute any reme dy aff ecting Br own’s fede ral 2 custody is not even named as a responde nt in this action and has not had the opportunity to respond to Brown’s petition. -8-