DLD-073                                                      NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                   No. 11-3980
                                   ___________

                        UNITED STATES OF AMERICA,

                                         v.

                               CRAIG BROWN,
                                  a/k/a BEY,
                                            Appellant
                    ____________________________________

                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                      (D.C. Criminal No. 97-cr-00544-001)
                    District Judge: Honorable Anita B. Brody
                   ____________________________________

                      Submitted for Possible Summary Action
             Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 and the
                      Issuance of a Certificate of Appealability
                                December 22, 2011

          Before: AMBRO, JORDAN and VANASKIE, Circuit Judges

                          (Opinion filed: January 4, 2012)
                               _________________

                                   OPINION
                               _________________

PER CURIAM

    Craig Brown appeals from the District Court’s orders declining to reconsider its

                                         1
denial of his motion for a modification of his sentence. For the following reasons, we

will summarily affirm.

                                             I.

       In 1998, Brown was found guilty by a jury in the Eastern District of Pennsylvania

of possession of cocaine base with the intent to distribute and possession of a firearm by a

convicted felon. He was sentenced to 360 months of imprisonment. This Court affirmed

his judgment of sentence.

       In June 2009, Brown filed a “motion for adjustment modification of an imposed

term of imprisonment pursuant to 18 U.S.C. [§] 3582(c), (1), (B) predicated upon another

modifying statute 28 U.S.C. [§] 2255.” He claimed that he was (1) wrongly sentenced as

a career offender because the predicate convictions upon which his career offender status

was based were improperly designated as crimes of violence, see Begay v. United States,

553 U.S. 137 (2008); United States v. Johnson, 587 F.3d 203 (3d Cir. 2009); (2) denied

due process as a result of his improper sentencing; and (3) actually innocent of being a

career offender. The District Court treated the motion as a § 2255 motion and denied it

as untimely.

       Brown filed a timely motion for reconsideration, arguing that the District Court

erred in construing his motion as a § 2255 motion instead of a § 3582 motion. He was

subsequently appointed counsel, who filed a second motion for reconsideration. Counsel

appeared to agree with the District Court’s characterization of the motion as a § 2255

motion, but argued that the motion was, in fact, timely and that, alternatively, relief was
                                             2
available to Brown pursuant to 28 U.S.C. § 2241. The District Court denied both

motions for reconsideration. Brown timely appealed.

                                             II.

       “When a § 3582 motion requests the type of relief that § 3582 provides for – that

is, when the motion argues that sentencing guidelines have been modified to change the

applicable guidelines used in the defendant’s sentencing – then the motion is rightly

construed as a motion to amend sentencing pursuant to § 3582.” United States v. Carter,

500 F.3d 486, 490 (6th Cir. 2007). However, “when a motion titled as a § 3582 motion

otherwise attacks the petitioner’s underlying conviction or sentence, that is an attack on

the merits of the case and should be construed as a § 2255 motion.” Id.; Okereke v.

United States, 307 F.3d 117, 120 (3d Cir. 2002) (“Motions pursuant to 28 U.S.C. § 2255

are the presumptive means by which federal prisoners can challenge their convictions or

sentences that are allegedly in violation of the Constitution.”).

       The District Court properly viewed Brown’s motion as having been brought

pursuant to § 2255 because the motion attacks his sentence based on an alleged

constitutional violation and/or a fundamental miscarriage of justice that occurred during

his sentencing. See 28 U.S.C. § 2255(a). Indeed, Brown’s own filings confirm that he is

seeking relief under § 2255 as the “modifying statue” that would permit the court to

reduce his sentence.1 Furthermore, Brown’s contentions that he was inappropriately


1
 Brown’s argument to the contrary is based on § 3582(c)(1)(B), which states that, despite
§ 3582(c)’s general prohibition against modification of a term of imprisonment, a court is
                                            3
sentenced as a career offender and that his sentence violates the constitution do not

provide a basis for relief under § 3582(c).

       Nor is Brown entitled to pursue his claims through § 2241. A prisoner may

proceed under § 2241 if § 2255 would be “inadequate of ineffective.” 28 U.S.C. §

2255(e); Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per

curiam). We have held that § 2255’s “safety valve” applies only in rare circumstances,

such as when an intervening change in the statute under which the petitioner was

convicted renders the petitioner’s conduct non-criminal. See In re Dorsainvil, 119 F.3d

245, 251 (3d Cir. 1997). Brown has not satisfied that standard here, as he makes no

allegation that he is actually innocent of the crime for which he was convicted, but

instead asserts only that he is “innocent” of being a career offender. See Okereke, 307

F.3d at 120-21 (holding that Dorsainvil did not permit petitioner to challenge sentence via

§ 2241 based on intervening change in sentencing law).




entitled to modify a sentence when “otherwise expressly permitted by statute.” That
§ 2255 is among the statutes expressly permitting modification of a sentence does not
permit Brown to circumvent the requirements applicable to § 2255 motions by
referencing the provision through § 3582. Furthermore, although district courts are
generally required to provide notice to a pro se litigant before re-characterizing a motion
as a § 2255 motion, see United States v. Miller, 197 F.3d 644, 652 (3d Cir. 1999), it is
difficult to say that the District Court engaged in any re-characterization here given
Brown’s express reliance on § 2255. Regardless, the District Court did not err in failing
provide notice because the § 2255 motion was untimely, as discussed further below. See
United States v. Chew, 284 F.3d 468, 471 (3d Cir. 2002) (no Miller warning was required
where the statute of limitations already barred petitioner from filing a § 2255 motion at
the time of re-characterization).
                                               4
        Brown must obtain a certificate of appealability to appeal the District Court’s

denial of his § 2255 motion. See 28 U.S.C. § 2253(c). We decline to grant him one

because reasonable jurists would agree that the District Court correctly dismissed his

motion as time-barred. See Slack v. McDaniel, 529 U.S. 473, 478 (2000). A one-year

statute of limitations applies to § 2255 motions and begins to run on the latest of four

possible dates, the most common being the date on which the movant’s judgment of

conviction became final. § 2255(f)(1). As Brown’s § 2255 motion was filed

approximately ten years after his judgment of conviction became final, it is clearly

untimely under that approach. Furthermore, none of § 2255(f)’s alternative start dates

applies nor is there any apparent basis for equitable tolling.

        For the foregoing reasons, we decline to issue a certificate of appealability with

respect to the District Court’s denial of Brown’s § 2255 motion and summarily affirm the

remaining aspects of the District Court’s rulings. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P.

10.6.




                                              5
