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Precedential or Non-Precedential: Non-Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Milovanovic v. Samuels" (2008). 2008 Decisions. Paper 1695.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1695
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
ALD-103 NOT PRECEDENTIAL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.