2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-19-2013

Terrell Brown v. Donna Zickefoose

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3431

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Recommended Citation

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3431

___________

TERRELL BROWN,

Appellant

v.

DONNA ZICKEFOOSE, WARDEN

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 1-11-cv-03330)

District Judge: Honorable Robert B. Kugler

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 18, 2013

Before: AMBRO, HARDIMAN and ROTH, Circuit Judges

(Opinion filed: July 19, 2013) 

_________________

OPINION

_________________

PER CURIAM

Terrell Brown, a federal prisoner proceeding pro se, appeals the dismissal of his 

application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons that 

follow, we will affirm.
2

I.

Because we write primarily for the parties, who are familiar with the facts and 

complex procedural history of this case, we will recite them only as necessary to our 

analysis. Terrell Brown has an extensive criminal history; three of his convictions are 

presently relevant. In 1993, Brown pleaded guilty in Oklahoma to possession of a 

dangerous substance—crack cocaine—with intent to distribute, and was sentenced to five

years imprisonment. The following year Brown pleaded guilty in Wisconsin to seconddegree reckless homicide in violation of Wis. Stat. § 940.06(1). That conviction related 

to a 1992 incident during which Brown approached a car in front of his home and shot at 

it multiple times, killing its occupant. While he was on parole for that offense, he was 

arrested in Chicago, Illinois, for attempting to deliver approximately half of a kilogram of 

crack cocaine to a dealer from Gary, Indiana. He was charged in the United States 

District Court for the Northern District of Indiana with attempting to distribute more than 

50 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In 

light of his Oklahoma and Wisconsin convictions, Brown was sentenced as a career 

offender to 360 months‘ imprisonment. The Seventh Circuit affirmed. United States v. 

Howard, 341 F.3d 620 (7th Cir. 2003).1 In June 2004, the District Court denied Brown‘s 

motion to vacate his sentence pursuant to 28 U.S.C. § 2255, Howard v. United States, No. 

3:03-cv-651 (N.D. Ind. 2004), and the Seventh Circuit denied his request for a certificate 

of appealability, Brown v. United States, No. 04-3114 (7th Cir. 2005).

 

1

In his initial proceedings in Indiana, Brown used the assumed name of Marcus Howard.
3

In April 2011, Brown filed in the Seventh Circuit an application to file a second or 

successive § 2255 motion in which he sought to claim that his prior conviction for 

reckless homicide should not have been considered a crime of violence in light of Begay 

v. United States, 553 U.S. 137 (2008), and United States v. Woods, 576 F.3d 400 (7th 

Cir. 2009), and that his sentence as a career offender was therefore in error. The Seventh 

Circuit denied Brown‘s application, concluding that Begay does not constitute a new rule 

of constitutional law. However, the Court dismissed the application ―without prejudice to 

any attempt by Brown to obtain relief under Begay in an action pursuant to 28 U.S.C. 

§ 2241.‖ Brown v. United States, No. 11-1893 (7th Cir. 2011). Brown, who was at that 

time incarcerated at FCI Fort Dix, thereafter filed an application for a writ of habeas 

corpus under § 2241 in the District Court for the District of New Jersey. The District 

Court determined that it lacked jurisdiction to review Brown‘s application and dismissed 

it on that basis. Brown v. Zickefoose, No. 11-3330 (D.N.J. 2011). Brown timely 

appealed.2

 

2 After Brown filed his notice of appeal, he filed in the District Court a ―Memorandum in 

Opposition to Summary Disposition.‖ As the District Court noted, Brown‘s filing of a 

notice of appeal immediately divested the Court of jurisdiction. Venen v. Sweet, 758 

F.2d 117, 120 (3d Cir. 1985). Nevertheless, ―recognizing [Brown‘s] interest[] in a 

speedy resolution of his challenges, as well as being mindful of the Court of Appeals‘ 

interest in processing appellate cases in an expedited fashion,‖ the District Court 

construed his filing as a motion for reconsideration and expounded on the reasoning 

behind its prior dismissal of his application. Any error in doing so was harmless.
4

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. United States 

v. Cepero, 224 F.3d 256, 264–65 (3d Cir. 2000) (en banc) (certificate of appealability not 

required to appeal from denial of § 2241 petition), abrogated on other grounds by 

Gonzalez v. Thaler, 132 S. Ct. 641, 649 (2012). We ―may affirm the District Court‘s 

judgment on any basis supported by the record.‖ Murray v. Bledsoe, 650 F.3d 246, 247 

(3d Cir. 2011) (per curiam). 

III.

The Government presently seeks to enforce the appellate waiver contained in 

Brown‘s guilty plea agreement, under which he agreed ―not to contest [his] sentence or 

the manner in which it was determined in any post-conviction proceeding, including, but 

not limited to, a proceeding under Title 28, United States Code, Section 2255.‖ Amended 

Pet‘n to Enter a Change of Plea at 4.3 We will enforce waivers of constitutional and 

statutory rights ―provided that they are entered into knowingly and voluntarily and their 

enforcement does not work a miscarriage of justice.‖ United States v. Mabry, 536 F.3d 

231, 237 (3d Cir. 2008).

First, Brown‘s plea was knowing and voluntary. As the District Court for the 

Northern District of Indiana explained, he was informed of the elements of the charges 

against him and the penalties he could face, and he indicated that he had not been coerced 

 

3

The Government‘s motions to file its brief and appendix out of time and to file an 

amended brief are granted.
5

into pleading by force or threat. Howard, No. 3:03-cv-651. The Seventh Circuit 

similarly concluded in his direct appeal that Brown ―was clearly informed about dire 

possibilities‖ and ―it is not possible to say that he was blind-sided‖ by the sentence he 

received. Howard, 341 F.3d at 622.

Nor would enforcing the waiver work a miscarriage of justice. The miscarriage of 

justice exception applies in only ―unusual circumstance[s]‖ such as where a sentence was 

― ̳imposed in excess of the maximum penalty provide[d] by law or . . . based on a 

constitutionally impermissible factor such as race.‘‖ United States v. Khattak, 273 F.3d 

557, 562 (3d Cir. 2001) (quoting United States v. Brown, 232 F.3d 399, 403 (4th Cir. 

2000)). No such circumstances are present here. See Mabry, 536 F.3d at 243 (finding no

miscarriage of justice where defendant was not misled and challenges to waiver ―d[id]

not implicate fundamental rights or constitutional principles‖).

IV.

We will enforce the waiver and affirm the dismissal of Brown‘s habeas application 

on that basis.