Brown v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
David Brown
v. 	Case No. 21-cv-716-JL
Warden, FCI Berlin
Report and Recommendation
David Brown, who is an inmate at the Federal Correctional
Facility in Berlin, New Hampshire, proceeding pro se and in
forma pauperis, filed a motion seeking compassionate release
pursuant to 18 U.S.C. § 3582(c) or, alternatively, transfer to a
residential reentry center pursuant to 18 U.S.C. § 3621(b). 	He
has filed motions for appointment of counsel and for a hearing.
His motion is before the court for preliminary review. 	See 28
U.S.C. §§ 1915(e)(2) & 1915A; LR 4.3(d)(1).
Brown’s motion was identified at intake as a petition under
28 U.S.C. § 2241. 	On further review, however, the motion does
not seek relief under § 2241.1 	Instead, Brown clearly and
explicitly seeks relief under § 3582(c)(1) and § 3621(b).2
1 Brown previously brought a petition under § 2241 in the
District of Kansas, Brown v. Johnston, 21-3010-JWL (D. Kan. Jan.
8, 2021), in which he challenged a disciplinary decision.
2 Further, to the extent the allegations might be
interpreted as supporting petition under § 2241 seeking release
on the ground that his court martial conviction was
unconstitutional because he was not convicted by a jury, that
claim is meritless. 	See Ortiz v. United States, 138 S. Ct.
2165, 2174-75 (2018); Solorio v. United States, 483 U.S. 435,
438-39 (1987).
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Under § 3582(c)(1), a prisoner may file a motion, seeking
reduction of his sentence, in the court that sentenced him. 	See
also 28 C.F.R. § 571.60. 	In appropriate circumstances, a
sentencing court may recommend that custody of a prisoner should
be in a residential reentry center. 	§ 3621(b); see United
States v. Soto, 14cr216-MMA-2, 2022 WL 594546 (S.D. Cal. Feb.
28, 2022). 	This court, however, did not sentence Brown.3
For purposes of preliminary review under § 1915(e)(2) and
§ 1915A, the court may dismiss a complaint that fails to state a
claim, if the court lacks subject matter jurisdiction, if a
defendant is immune from suit, or if the action is malicious or
frivolous. 	In this case, the court lacks jurisdiction to grant
the relief Brown requests under § 3582(c) and § 3621(b). 	See
United States v. Raia, 954 F.3d 594, 596 (3d Cir. 2020); United
States v. Summers, 19-80228-JWL, 2020 WL 4596864 (D. Kan. Aug.
11, 2020). 	Therefore, the district judge should dismiss the
complaint for lack of jurisdiction.
Conclusion
For the foregoing reasons, the undersigned recommends that
the district judge dismiss the motion for compassionate release
(doc. no. 1), without prejudice, due to lack of jurisdiction,
3 Brown represented in the § 2241 proceeding in Kansas,
Brown v. Johnston, 21-3010-JWL (D. Kan. Jan. 8, 2021), that the
sentencing court was “Uniform Code of Military Justice, Court-
Martial, Fort Leavenworth, Kansas.” 	Id., doc. 1.
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and direct that the clerk of court enter judgment accordingly
and close the case. 	The motions for counsel and for oral
argument (docs. nos. 9, 13, and 15) should be denied as moot.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Only those issues raised in the objection(s) to
this Report and Recommendation are subject to review in the
district court. 	See Sch. Union No. 37 v. United Natl Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010). 	Any issues not preserved by
such objection(s) are precluded on appeal. 	See id. 	Failure to
file any objections within the specified time waives the right
to appeal the district court's order. 	See Santos-Santos v.
Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
SO ORDERED.
______________________________
Andrea K. Johnstone
United States Magistrate Judge
March 23, 2022
cc: David Brown, pro se
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