United States District Court, E.D. Virginia, Richmond Division
E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE.
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.
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. (§ 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.)
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
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
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
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.
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; ...