                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-28-2008

Milovanovic v. Samuels
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4417




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"Milovanovic v. Samuels" (2008). 2008 Decisions. Paper 1695.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1695


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  ALD-103                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07- 4417
                                      ___________

                               GORAN MILOVANOVIC,
                                        Appellant

                                              v.

                             CHARLES E. SAMUELS
                      ____________________________________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                             (D.C. Civil No. 07-cv-02593)
                      District Judge: Honorable Noel L. Hillman
                     ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   January 17, 2008
            Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges

                            (Opinion filed: January 28, 2008)


                                        OPINION


PER CURIAM

      Goran Milovanovic, a prisoner at FCI Fort Dix, New Jersey, appeals the District

Court’s dismissal of a petition he filed pursuant to 28 U.S.C. § 2241. Because the appeal

presents no substantial question, we will summarily affirm the judgment of the District
Court pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6.

                                             I.

       In 2005 Milovanovic pled guilty in the United States District Court for the Middle

District of Florida to a drug offense. The court sentenced him to 78 months’

imprisonment, to be followed by three years’ supervised release. Milovanovic did not

appeal but instead filed a motion pursuant to 28 U.S.C. § 2255 challenging his conviction

and sentence. The motion was denied. While his appeal from that decision was pending,

Milovanovic sought leave from the United States Court of Appeals for the Eleventh

Circuit to file another § 2255 motion. Leave was denied without prejudice.

       In 2006 Milovanovic filed a habeas corpus petition pursuant to 28 U.S.C. § 2241,

arguing that his term of supervised release should be included within the 78 months

sentence and that the District Court had sentenced him for an offense with which he had

not been charged. The District Court dismissed the petition for lack of jurisdiction,

reasoning that Milovanovic’s claims should have been brought under § 2255.

Milovanovic appealed, but we granted his subsequent motion to dismiss the appeal. C.A.

No. 06-3206.

       In 2007 Milovanovic filed another § 2241 petition. In this petition he repeats,

albeit in greater detail, his challenge to the execution of his sentence. He evidently

believes that 78 months is the full extent of his sentence, including his term of supervised

release. Thus, Milovanovic argues that his term of incarceration should be 78 months


                                              2
minus 36 months (supervised release) minus ten months (good time), i.e., 32 months.

Milovanovic, who no longer argues that the sentencing court imposed a sentence for an

offense with which he was not charged, insists that he is not challenging his conviction or

sentence, merely its execution, and thus may proceed under § 2241 rather than § 2255.

       The District Court dismissed the petition on three alternative grounds: abuse of the

writ (see Zayas v. INS, 311 F.3d 247 (3d Cir. 2002)); lack of jurisdiction (because the

claim should have been presented via § 2255); and as meritless. This appeal followed.1

                                             II.

       We agree with Milovanovic that his claim challenges merely the execution of his

sentence and thus falls under § 2241 rather than § 2255. As a result, the District Court

had jurisdiction to entertain it. We need not address whether Milovanovic’s claim is

barred as an abuse of the writ2 because it is plainly meritless. As the District Court

explained, the terms of his judgment require Milovanovic “to be imprisoned for a total

term of SEVENTY-EIGHT (78) MONTHS . . . . Upon release from imprisonment, the


   1
    We have jurisdiction under 28 U.S.C. § 1291 and review the District Court’s
judgment de novo. Zayas, 311 F.3d at 252-253.
   2
     In Milovanovic’s case the District Court raised abuse of the writ sua sponte and did
not provide Milovanovic an opportunity to respond to the issue. However, the Supreme
Court has explained that the respondent bears the burden of pleading abuse of the writ.
See McCleskey v. Zant, 499 U.S. 467, 494-495 (1991). Courts have held that a district
court may not raise the defense sua sponte unless it provides the petitioner an opportunity
to respond. See Femia v. United States, 47 F.3d 519 (2d Cir. 1995), United States v.
Fallon, 992 F.2d 212 (8 th Cir.1993). Besides, Milovanovic’s claim was not addressed on
the merits in his prior § 2241 petition. See Sanders v. United States, 373 U.S. 1, 17
(1963).

                                              3
defendant shall be on supervised release for a term of THREE (3) YEARS . . . .” It could

hardly be more clear that the term of supervised release is consecutive to the term of

imprisonment, and that it is the term of imprisonment, not the overall length of the

sentence, that is 78 months. The language of 18 U.S.C. § 3583(a) relied on by

Milovanovic – “the court in imposing a sentence to a term of imprisonment . . . may

include as a part of the sentence a requirement that the defendant be placed on a term of

supervised release after imprisonment” – does not support his contention that 78 months

is the full duration of his sentence, including supervised release. Indeed, § 3624(e)

unambiguously provides otherwise. See United States v. Johnson, 529 U.S. 53, 56-57

(2000).

       Accordingly, we will affirm the judgment of the District Court.
