UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Edward L. Brown,

Petitioner

v. Civil No. 08-cv-019-SM

Opinion No. 2008 DNH 029

United States of America,

Respondent

O R D E R

Petitioner has filed a “motion to vacate, set aside or

correct a sentence by persons in federal custody,” . . . . After

a jury trial, petitioner was convicted of structuring financial

transactions to evade reporting requirements (18 U.S.C. §§

5324(a)(3), 5325); conspiracy to structure financial transactions

(18 U.S.C. § 371); and conspiracy to defraud the United States

(18 U.S.C. § 371). He was sentenced, inter alia, to 63 months in

prison and 3 years of supervised release on each count. Judgment

was entered in accordance with the jury’s verdicts and the

sentence imposed, on April 24, 2007.

Petitioner filed a notice of appeal on January 28, 2007,

before judgment entered, seeking direct review of his conviction. 

That appeal was rejected (and the filing fees returned) as

untimely (premature). Petitioner’s direct appeal was reinstated

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by the court, however, on April 26, 2007, when it became timely,

by operation of Fed. R. App. P. 4(b)(2). The record was duly

transmitted to the United States Court of Appeals for the First

Circuit. The Court of Appeals dismissed petitioner’s appeal on

October 10, 2007, due to his inexplicable failure to prosecute

the appeal, thus rendering the judgment of conviction and

sentence final.

Although petitioner has filed a motion seeking to “vacate,

set aside or correct a sentence by persons in federal custody,”

employing the language of and invoking the substantive relief

provided for under the provisions of 28 U.S.C. § 2255, he now

emphatically denies that he intended to file a motion for relief

under § 2255. He says:

As usual, the court misinterprets the motion. Placed

under civil case #08-cv-19-SM Edward-Lewis : Brown

(sic), this motion is filed For Edward-Lewis and

Elaine-Alice Brown. Both parties husband and wife with

same case, and is “absolutely not” a 2255 motion and is

not to be construed as such.

Letter, dated January 26, 2008.

First, it must be noted that Defendant Elaine A. Brown has

not signed the motion and Edward L. Brown is not qualified to act

as her legal counsel. The motion is deemed to be Edward A.

Brown’s alone.

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Second, notwithstanding the substantive nature and form of

the motion as one seeking relief under § 2255, because defendant

affirmatively disavows any intent to file such a motion, and

because treating it as such would adversely affect his rights

under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2241, et seq., given the Act’s strict

limitations on second or successive petitions, the court will

accept defendant’s dubious assertion.

While the relief defendant seeks — apparently vacation of

his criminal convictions and sentence — is, in theory, available

to him under 28 U.S.C. § 2255, defendant is not seeking relief

under that section. No further analysis or consideration under

that provision, then, is required. The motion, as a motion in

his closed criminal case (proceedings under § 2255 are civil, not

criminal, in nature), is denied as unsupported, unjustified,

without merit, and frivolous. Future motions of like kind in the

closed criminal case will be summarily rejected or denied.

To the extent the motion might be construed as raising

complaints about the conditions of his current confinement,

defendant in advised that jurisdiction over those complaints

properly lies in the federal district with jurisdiction over the

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prisoner’s custodian (generally the district in which the

prisoner is incarcerated), and not in the sentencing court. See

28 U.S.C. § 2241; See United States v. DiRusso, 535 F.2d 673,

674-76 (1st Cir. 1976); United States v. Barrett, 178 F.3d 34, 50

n.10 (1st Cir. 1999).

With respect to civil case no. 08-cv-19-SM, the clerk shall

docket defendant’s motion for relief in his criminal case (no.

06-cr-71-SM), noting its disposition on that docket, and shall

close the civil case, noting that the motion was stricken,

without prejudice, and refiled in the criminal case.

Conclusion

The motion (document no. 1) is denied.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

February 1, 2008

cc: Edward L. Brown, pro se

Aixa Maldonado-Quinones, Esq.

William E. Morse, Esq.

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