     Case: 13-30173      Document: 00512465379         Page: 1    Date Filed: 12/09/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                    No. 13-30173                           December 9, 2013
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk

GERALD BROWN,

                                                 Petitioner-Appellant

v.

UNITED STATES OF AMERICA,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:12-CV-674


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Gerald Brown, federal prisoner # 33360-013, was convicted of drug-
trafficking in the District of Wyoming. He filed a purported habeas petition
under 28 U.S.C. § 2241 in the Western District of Louisiana where he was
incarcerated. The district court construed the petition as a 28 U.S.C. § 2255
motion, dismissed it for lack of jurisdiction, denied Brown leave to appeal in




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 13-30173     Document: 00512465379     Page: 2   Date Filed: 12/09/2013


                                  No. 13-30173


forma pauperis (IFP), and certified that the appeal was not taken in good faith.
Brown now moves for leave to appeal IFP.
      By moving for IFP, Brown challenges the district court’s certification
that the appeal is not taken in good faith. Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997); FED. R. APP. P. 24(a)(3)(A). We ask only “whether the appeal
involves legal points arguable on their merits (and therefore not frivolous).”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks
and citation omitted). We may rule on the merits or dismiss the appeal “where
the merits are so intertwined with the certification decision as to constitute the
same issue.” Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
      Relying on United States v. Booker, 543 U.S. 220 (2005), and related
Supreme Court decisions, Brown contended that his sentence was unlawful.
Because he challenged his sentence, his petition was correctly construed as a
§ 2255 motion. See Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000).
Moreover, Brown does not show that his claims could be brought in a § 2241
petition under the savings clause of § 2255(e), because he does not establish
that any claim “‘is based on a retroactively applicable Supreme Court decision
which establishes that the petitioner may have been convicted of a nonexistent
offense’” and that the claim “‘was foreclosed by circuit law at the time when
the claim should have been raised.’” Padilla v. United States, 416 F.3d 424,
426 (5th Cir. 2005) (quoting Reyes-Requena v. United States, 243 F.3d 893, 904
(5th Cir. 2001)). The action was properly dismissed because the district court
lacked jurisdiction over the § 2255 motion, which could have been filed, if at
all, only in the district where Brown was convicted. See United States v.
Weathersby, 958 F.2d 65, 66 (5th Cir. 1992).




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                                 No. 13-30173


      Brown identifies no non-frivolous issue for appeal. His IFP motion is
DENIED and the appeal is DISMISSED. See Baugh, 117 F.3d at 202 & n.24;
5TH CIR. R. 42.2.
      This is the second constructive § 2255 motion that Brown has incorrectly
presented as a habeas petition and filed in a court without jurisdiction.
Moreover, the Tenth Circuit rejected the underlying premise of his claims on
direct appeal years ago. United States v. Brown, 212 F. App’x 736, 741 (10th
Cir. 2007); see United States v. Brown, 556 F.3d 1108, 1109-11 & n.3 (10th Cir.
2009).   This appeal is frivolous.   Brown is warned that further frivolous
litigation will result in the imposition of monetary sanctions and limits on his
access to federal courts.




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