Brooks v. Wilson

Filing 15

MEMORANDUM OPINION. SEE OPINION FOR COMPLETE DETAILS. Signed by District Judge Robert E. Payne on 12/05/2017. Copy of Memorandum Opinion sent to counsels of record.(ccol, )

IN THE

UNITED

FOR THE

STATES

DISTRICT

COURT

p
p

EASTERN DISTRICT OF VIRGINIA

Richmond Division

RICHMOND. VA

Civil Action No.

.

3;16CV857

WILSON,

Respondent.
MEMORANDUM OPINION

Ashley

U.S.C.

Terrell

Brooks,

a

federal

inmate,

§ 2241 petition {"§ 2241 Petition,"

reasons

set

forth

below,

the

§

2241

filed

this

ECF No. 1).

Petition will

28

For the

be dismissed

for lack of jurisdiction.

I.

Brooks
convicted
sentence

months
328

pled
felon

under

Cir.

under ACCA.^

guilty
and

the

in prison.

(4th

n'

i'

CLERK, U.S. DISTRICT COURT

Petitioner,

ERIC C.

DEC-•6 201?

u

ASHLEY TERRELL BROOKS,

V

fZ.

was

Armed

BACKGROUND

to

possession

sentenced
Career

Brooks

a

his

firearm

mandatory

Act

Brooks,

challenges

(§ 2241 Pet. 1-2.)

the

Criminal

United States v.

2008) .

to

of

("ACCA")

296

F.

by

minimum
of

App'x

enhanced

a

180

327,

sentence

Brooks contends that in light

^ As noted by the Supreme Court,
Federal
law
forbids
certain
people-such
as
convicted
felons,
persons
committed
to
mental
institutions,
and drug users-to ship,
possess,
and
receive firearms.
§ 922(g).
In general,
the law
punishes violation [s] of this ban by up to 10 years'
imprisonment.
§ 924(a)(2).
But if the violator has

of

the decisions

Cir.

2015),

2011),

he

and United States v.

no

sentence.

in United States v.

longer

has

(Id.)

On

three

October

response and agreed that,

Newbold,

Simmons,

649

predicate
24,

predicate

years."

(Resp.

Brooks

4,

for

F.3d 237

ECF No.

as

defendant's

8.)

(4th

(4th Cir.

for

an

ACCA

filed

Respondent

in light of Newbold,

the

F.3d 455

felonies

2017,

prior drug offenses no longer qualifies
offense'

791

his

one of Brooks's

"as a

ACCA

'serious drug

sentence

of

15

Respondent further conceded that

"no longer qualifies under ACCA and his maximum sentence

is only 10 years in prison.
amount

[of

time],

prison."

(Id.

however,

failed

the

Because he has already served that

court

at 4-5.)

should

order

his

release

In making this concession.

to address

how,

under the

for the United States Court of Appeals

from

Respondent,

established precedent

for

the

Fourth Circuit,

the Court had jurisdiction to grant such relief under 28 U.S.C.

§ 2241.
2017,

Accordingly,

the

parties

to

Court

file

jurisdiction.

three

by Memorandum Order entered on October 25,

appointed

further
The

counsel

briefs

parties

have

for

with

Brooks

respect

filed

or more earlier convictions

the

for

a

and

to

directed

the

required

issue

the

of

briefing.

"serious drug

offense"
or a
"violent felony,"
the Armed Career
Criminal Act increases his prison term to a minimum of
15 years and a maximum of life.
§ 924 (e) (1).
Johnson

v.

United

(citations omitted).

States,

135

S.

Ct.

2551,

2555

(2015)

For

the

reasons

that

follow,

the

Court

finds

that

it

lacks

jurisdiction under 28 U.S.C. § 2241 to grant Brooks relief.

II.

Federal

JURISDICTION UNDER 28 U.S.C.

courts

are

courts

of

§

2241

limited

jurisdiction,

"constrained to exercise only the authority conferred by Article
III

of

the

Constitution

and

affirmatively

statute."

In re Bulldog Trucking,

Cir.

(citations omitted).

1998)

required,

sua

jurisdiction

sponte,
exists,

ground appears."

Id.

to
"and

determine
to

federal

with

means

of

1111,

1113

under

28

remedy

collateral

sentencing court.

(5th Cir. 2000)

afforded

§

ineffective to test

§ 2255 (e).^

U.S.C.

attack"

basis

action

28
the

unless

§ 2255

on

the

and such a

Pack v.

1990) ) .

2241

by

352

{4th

federal court is

valid

the

if

for

its

no

such

U.S.C.

imposition

218

of

F.3d 448,

Fed. Det. Ctr.,

A federal
he

"provides the

a

motion must be filed

Yusuff,

(quoting Cox v. Warden,

(5th Cir.

U.S.C.

a

a

federal

(citations omitted).

conviction and sentence,

the

if

dismiss

by

147 F.3d 347,

Accordingly,

A motion made pursuant to 28

primary

Inc.,

granted

451

911 F.2d

inmate may not proceed

or

she

§

22 55

demonstrates

"is

that

the

inadequate

or

legality of his detention."

28 U.S.C.

"For example, attacks on the execution of a sentence

^ "This 'inadequate and ineffective'

exception is known as

the 'savings clause' to [the] limitations imposed by § 2255."
Wilson V. Wilson, No. I:llcv645 (TSE/TCB), 2012 WL 1245671, at

are properly raised in a
1192,

1194

F.3d 164,
632 n.l

of

n.5

166

(4th

Appeals

remedy

for

the

procedurally

1996);

§

(citing

Circuit

2255

because

is

an

In re Vial,
Bradshaw v.

Hanahan v.

Nevertheless,

Fourth

by

merely

obtain relief

1997)

1982)).

afforded

ineffective

Cir.

(10th Cir.

(7th Cir.

§ 2241 petition."

Luther,

from

has

not

rendered

a

86

693 F.2d 629,

emphasized

individual

filing

Story,

the United States Court

has

§

2255

that

"the

inadequate
been

under that provision or because an

barred

115 F.3d

or

unable

to

individual

motion."

is

Id.

(citations omitted).

The

under

Fourth Circuit has

§ 2241

to challenge his

circumstances."

Cir.

2008)

stressed that an inmate may proceed

conviction

United States v.

Poole,

"in only very limited
531

F.3d 263,

(internal quotation marks omitted).

test," id.,

269

(4th

The "controlling

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 i s not one of constitutional

In

re

Jones,

added).

*3
333

(E.D.

The

226

Fourth

Va. Apr.

(4th Cir.

F.3d

12,

2000)).

328,

Circuit

2012)

333-34

(4th

formulated

law.

Cir.

this

2000)

test

(quoting In re Jones,

to

(emphasis

provide

a

226 F.3d 328,

remedy for

which ^

the

"fundamental defect

individual

criminal but,

is

presented by a

incarcerated

for

through no fault of his

has

no

source

of

redress."

The

Fourth Circuit

has

Id.

conduct

[or her]

at

333

instructed that

n.3

if

situation

that

own,

§

not

[he or she]

(emphasis

a

is

in

2241

added).

petitioner

cannot satisfy the test of In re Jones,

the "unauthorized habeas

motion must

be

jurisdiction."

Rivera,

F.3d

cannot

617

satisfy

dismissed
802,

this

for

807

test,

lack of

(4th

Cir.

because

2010).

his

Rice

Brooks

conduct

of

v.

obviously

conviction-

possession of a firearm by a convicted felon-remains criminal.
The

parties

controlling
"fundamental

individuals

acknowledge

test

in

the

defect"

whose

that

Fourth

test

re

Circuit,

also

conduct

In

Jones

but

embraces

remains

contend

criminal,

but

the

statutory maximum sentence.

below,

of

this

controlling

test

interpretation of

in

the

view
Fourth

requires

a

Circuit

his

As

not

or

the
the
for

her

explained

revision

and

the binding precedent.

that

circumstances

sentence exceeds

adoption

remains

of

merely

the
an

See United States v.

Surratt, 797 F.3d 240, 248-50 {4th Cir. 2015);^ Farrow v. Revell,

^ The Court recognizes that the panel decision in Surratt
does

not

constitute binding precedent as

i t was vacated by the

Fourth Circuit's granting of rehearing en banc. See 4th Cir.
Loc. R. App. P. 35(c).
Further, the panel decision was not
reinstated when the court found the petitioner's claims to be
moot in its ruling on rehearing and dismissed the appeal. United
States V.

cert,

Surratt,

filed,

July

855

21,

F.3d

218

2017

(No.

(4ch

Cir.

17-5255) .

2017),

petition

Nevertheless,

for

the

541

F.

App'x

327,

328

(4th

Cir.

2013)

(citation

omitted)

(concluding petitioner's "challenge to his armed career criminal
status is not cognizable in a
F.3d

at

267

extended

the

n.7

("Fourth

reach

of

the

§ 2241 petition");

Circuit
savings

challenging only their sentence."
at 333-34)).

precedent
clause

see Poole,

has

to

.

those

.

.

531
not

petitioners

(citing In re Jones,

226 F.3d

In the absence of an intervening decision from the

Supreme Court or the Fourth Circuit,

such a

revision is beyond

the power of this Court.
In re Jones made a

"clear limitation .

case can be used to invoke

§ 2255(e),

'such

v/hich

that

the

conduct

of

deemed not to be criminal.'"

In

re

Jones,

Holder,

560

only logical,

226
U.S.

F.3d
563

but

at

arguably

having been 'convicted'
applies

petition

full

for

enhancement."

force

a

claim

Brooks

of

(Reply 3,

own

actual

ECF No.

that,

was

before the

to

convicted

F.3d at 248

that

describe

Mr.

is

(quoting

Carachuri-Rosendo

contends

required

its

797

Citing

under ACCA.

on

prisoner

Surratt,

(2010),

.

the law must have changed

the

334).

.

"it

is

Brooks

v.
not

as

On this understanding Jones
terms,

and

innocence
11.)

allows

of

the

a

habeas

sentencing

Surratt raised a

similar

argument and the Fourth Circuit explained why i t was foreclosed
by the relevant precedent:

Court cites to the panel opinion as i t reflects the current
state of the law in the Fourth Circuit and addresses many of the
arguments raised by the parties here.

[Surratt]
argues
that
his
predicate
convictions
constitute elements of a separate, aggravated offense
for recidivists.
If that proved true, we might say
that Surratt was not guilty of the prior conviction
"element," and therefore innocent of the recidivist

offense.
an

Yet we do not

element

United

of

States,

[the]

treat a

offense."

523

U.S.

224,

247

Alleyne v. United States,
2151, 2160 & n. 1 ( 2 0 1 3 ) . . . .
Surratt

insists

that

Id.

They are not.

at

alteration

248

{second

.

in

(1998);

s^

also

,

sentence

enhancements

.

133

v.

U.S.

his

are different.

prior conviction "as
Almendarez-Torres

S.Ct.

.

original)(parallel

citations

omitted).

The

Fourth

Circuit

does

not

recognize

the

sort

of

actual

innocence of a sentencing enhancement as pressed by Brooks here:

"[A]ctual
"means

innocence,"
factual

the Supreme

innocence,

Court
not

has

told us,

mere

legal

insufficiency." Bousley v. United States, 523 U.S.
614, 623 (1998); see also United States v. Tyler, 732
F.3d 241, 246 (3d Cir. 2013) ("While Bousley addressed
the standard that a petitioner must meet for claims
brought under § 2255, this standard applies equally to
actual innocence claims brought under § 2241."). So,
"actual innocence applies in the context of habitual
offender provisions
only
where
the
challenge
to
eligibility
stems
from
factual
innocence
of
the
predicate
crimes,
and
not
from
the
legal
classification of the predicate crimes."
Pettiford,
612

F.3d

at

284;

accord

Damon

v.

United

States,

732

F.3d 1, 5-6 (1st Cir. 2013); McKay v. United States,
657 F.3d 1190, 1199 (llth Cir. 2011) .
Surratt does

not suggest that he did not commit the crimes listed
in

the

Government's

original

information.

He

only

says Simmons changed the relevance of those crimes in
determining
constitutes

his later sentence.
Surratt's argument
the
sort
of
argument
about
"legal

classification"

Id. at 250

that we have deemed insufficient.

(alteration in original).

Additionally,
Brooks contends

pointing

that

" [a]

to

§

his

own

procedural

2255 motion is actually inadequate

and ineffective to test the legality of Mr.

(Reply 4

history,

(emphasis omitted,

Brooks'

detention."

capitalization corrected).)

Like,

Surratt, Brooks "never suggests that the § 22 55 mechanism denied
him a

chance

only that

to make

his

[the Fourth Circuit's]

Carolina law,

argument.

best,

he

pre-Simmons reading of"

Surratt,

says

North

and his own

797 F.3d at 254;

(Reply 4-

Allegations of this ilk do not render § 2255 inadequate so

as to allow a petitioner access to § 2241.

Finally,

so.

"[A]

of

the

a prisoner is unable
case.

'Congress

Clause,

.

review.'"

Cir.

at

Taylor,

529 U.S.

is

offended"

benefit

a

new

362,

without

the

265

1998),

[does not]

source

of

law

abrogated

376-77

on

other

(2000)).

because

interpretation

of

an
a

is

simply not

develop whenever

later,

offending

(quoting Green v.

simply

(citations omitted).

This

to take advantage of a

can,

. narrow
Id.

(4th

not

Suspension Clause.

Suspension Clause problem

.

Id.

Brooks suggests that failing to afford him relief

would run afoul

876

At

the ineffective assistance of counsel,

lack of legal acumen did.
8) .

present

the

Suspension

cognizable
French,

on

143

grounds,

favorable

habeas

F.3d 865,

Williams

v.

"[T]he Suspension Clause

individual
criminal

is

denied

statute.

the
Id.

When "a federal prisoner brings a § 2241 petition that does
not

fall

within

district

motion .

the

court

.

. for

scope

must

lack

of

supports

the

prisoner's

citation

and

quotation

here.

Accordingly,

of

th[e]

dismiss

savings
the

then

unauthorized

jurisdiction, '

even

position."
marks

clause,

Id.

omitted).

the

habeas

if

the

Government

at

247

(internal

That

is

for the reasons set forth above,

the

case

the § 2241

Petition will be dismissed for lack of jurisdiction.

The

Clerk

is

directed

to

send

a

copy

of

this

Memorandum

Opinion to counsel of record.
It

is

so ORDERED.

1±L
Robert E. Payne
Senior United States District Judge
Date

4^ 5 2^(7

Richmond, Virginia