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Brooks v. Wilson

United States District Court, E.D. Virginia, Richmond Division

May 2, 2019

ASHLEY TERRELL BROOKS, Petitioner,
v.
ERIC C. WILSON, Respondent.

          MEMORANDUM OPINION

          ROBERT E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE.

         Ashley Terrell Brooks, a federal inmate, filed this 28 U.S.C. § 2241 petition ("§ 2241 Petition," ECF No. 1). For the reasons set forth below, the § 2241 Petition will be granted.

         Brooks pled guilty to possession of a firearm by a convicted felon and was sentenced to the mandatory minimum sentence under the Armed Career Criminal Act ("ACCA") of 180 months in prison. United States v. Brooks, 296 Fed.Appx. 327, 328 (4th Cir. 2008). Brooks challenges his enhanced sentence under ACCA.[1] (§ 2241 Pet. 1-2.) Brooks contends that in light of the decisions in United States v. Newbold, 791 F.3d 455 (4th Cir. 2015), and United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), he no longer has three predicate felonies for an ACCA sentence. (Id.) On October 24, 2017, Respondent filed his response and agreed that, in light of Newbold, one of Brooks's prior drug offenses no longer qualifies as "as a 'serious drug offense' predicate for the defendant's ACCA sentence of 15 years." (Resp. 4, ECF No. 8.) Respondent further conceded that Brooks "no longer qualifies under ACCA and his maximum sentence is only 10 years in prison. Because he has already served that amount [of time], the court should order his release from prison." (Id. at 4-5.)

         Nevertheless, by Memorandum Opinion and Order entered on December 6, 2017, the Court denied Brooks's § 2241 Petition because it concluded that it lacked jurisdiction under 28 U.S.C. § 2241. The Court explained that:

A motion made pursuant to 28 U.S.C. § 2255 "provides the primary means of collateral attack" on the imposition of a federal conviction and sentence, and such a motion must be filed with the sentencing court. Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (quoting Cox v. Warden, Fed. Pet. Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990)). A federal inmate may not proceed under 28 U.S.C. § 2241 unless he or she demonstrates that the remedy afforded by 28 U.S.C. § 2255 "is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). . . .
The Fourth Circuit has stressed that an inmate may proceed under § 2241 to challenge his conviction "in only very limited circumstances." United States v. Poole, 531 F.3d 263, 269 (4th Cir. 2008) (internal quotation marks omitted). The "controlling test," id., in the Fourth Circuit is as follows:
[Section] 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.
In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (emphasis added). The Fourth Circuit formulated this test to provide a remedy for the "fundamental defect presented by a situation in which an individual is incarcerated for conduct that is not criminal but, through no fault of his [or her] own, [he or she] has no source of redress." Id. at 333 n.3 (emphasis added). The Fourth Circuit has instructed that if a § 2241 petitioner cannot satisfy the test of In re Jones, the "unauthorized habeas motion must be dismissed for lack of jurisdiction." Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Brooks obviously cannot satisfy this test, because his conduct of conviction-possession of a firearm by a convicted felon-remains criminal.

Brooks v. Wilson, No. 3:16CV857, 2017 WL 6046128, at *l-2 (E.D. Va. Dec. 6, 2017), vacated and remanded, 733 Fed.Appx. 137 (4th Cir. 2018). Brooks appealed.[2]

         On August 3, 2018, the United States Court of Appeals for the Fourth Circuit granted Brooks's appeal and vacated the decision of this Court. Brooks, 733 Fed.Appx. at 138. The Fourth Circuit noted that:

The district court determined that Brooks was unable to challenge his sentence under the savings clause of 28 U.S.C. § 2255(e) (2012). The district court did not have the benefit of our recent decision in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018). In light of Wheeler, we vacate the district court's order and remand the case for further proceedings.

Id.

         In Wheeler, the Fourth Circuit formulated a new, broader test that allows inmates to proceed under 28 U.S.C. § 2241 to challenge their sentences:

[W]e conclude that § 2255 is inadequate and ineffective to test the legality of a sentence when: (1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h) (2) for second or successive motions; ...

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