Brooks v. Wilson

Filing 44

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 05/02/2019. Copies distributed as directed. (tjoh, )

5

IL
MW -2 2019

IN THE UNITED STATES DISTRICT COURT

CLERK, U.S. DISTRICT COURT
RICHMOND. VA

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

ASHLEY TERRELL BROOKS,

Petitioner,
Civil Action No. 3:16CV857

V.

ERIC C. WILSON,

Respondent.
MEMORANDUM OPINION

Ashley Terrell Brooks, a federal inmate, filed this 28 U.S.C.
§ 2241 petition ("§ 2241 Petition," EOF 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 F. App'x 327, 328 (4th Cir. 2008).

Brooks challenges his enhanced sentence under ACCA.^

(§ 2241 Pet.

1 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
three or more earlier convictions for a "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 States, 135 S. Ct. 2551, 2555 (2015) (citations
omitted).

1-2.)

Brooks contends that in light of the decisions in United

States V. Newboldy 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. Det. 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]
ineffective
to

2255
is
inadequate
and
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 *1-2 (E.D.

Va. Dec. 6, 2017), vacated and remanded, 733 F. App'x 137 (4th
Cir. 2018).

Brooks appealed.^

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 F. App'x at 138.

The Fourth Circuit

noted that:

2 In June of 2018, the Court released Brooks on conditions
pending the outcome of his appeal. (ECF Nos. 27-29.)

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 Wheelery 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;

and

(4)

due

to

this

retroactive

change, the sentence now presents an error sufficiently
grave to be deemed a fundamental defect.

Wheeler, 886 F.3d at 429 (citations omitted), cert, denied. No.
18-420, 2019 WL 1231947 (U.S. Mar. 18, 2019).

Thereafter,

the

Fourth

Circuit

concluded

that

Wheeler

satisfied this new test because:

[I]t is undisputed that at the time Appellant was
sentenced in February 2008, his sentence was legal

pursuant to

Harp.[^]

Second,

the

en

banc

Simmons

decision, which abrogated Harp, was decided August 17,
2011, and was made retroactive on collateral review by
Miller'^ on August 21, 2013.
This all occurred after
3 United States v. Harp, 406 F.3d 242 (4th Cir. 2005).
4 Miller-El V. Cockrell, 537 U.S. 322 (2003).

Appellant's direct appeal, filed March 2008, and his
first § 2255, filed June 2010.
Although Appellant
actually raised a Siitimons type claim in his first § 2255
on ineffective assistance of counsel grounds, the
Simmons

en

banc

decision

itself

could

not

have

been

invoked at that time because it did not exist. . . .

In

addition.
Appellant
is
unable
to
satisfy
the
requirements of § 2255(h)(2) because Simmons was a
statutory decision and was not made retroactive by the
Supreme Court.

Id. at 429-30 (internal citation omitted).
Circuit

concluded

that

Wheeler's

Lastly, the Fourth

enhanced

mandatory

minimum

sentence under ACCA "meets the third requirement of the savings
clause—that his sentence now presents an error sufficiently grave
to be deemed a fundamental defect."

Brooks's

challenge

to

his

Id. at 433.

ACCA

sentence

identical to that of the petitioner in Wheeler.

is

essentially

The parties agree

that Brooks is entitled to relief in the form of entering "a new

judgment order correcting Mr. Brooks's sentence to 120 months of
imprisonment and three years of supervised release with the same
conditions originally imposed - the statutory maximum for his
conviction under 18 U.S.C. § 922(g)

(ECF No. 36, at 2; see ECF

No. 42, at 1.) The Court can enter this corrected judgment without

conducting a formal resentencing.

See United States v. Hadden,

475 F.3d 652, 669 (4th Cir. 2007) (explaining that the district
court "has broad and flexible power under § 2255 to determine the

nature

and

scope

of

the

remedial

proceedings

in

the

first

instance . . . and nothing in the sentence-package theory forbids

the district courts from doing what the text of § 2255 clearly

permits:
conducting

correcting
a

formal

a

prisoner's

resentencing"

unlawful

sentence

(alterations

and

without
internal

quotation marks omitted)); see United States v. Triestman^ 178
F.3d 624, 630 (2d Cir. 1999) (^'We . . . see no reason to view a

court's remedial powers more narrowly in a § 2241 motion than in
a § 2255 motion." (citing Swain v. Pressley, 430 U.S. 372, 381

(1977))).
be granted.

Accordingly, Brooks's § 2241 Petition (ECF No. 1) will
Brooks's Judgment in a Criminal Case will be amended:

to omit any reference to 18 U.S.C. § 924(e); to reflect that he

was simply convicted of possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g)(1); to reflect that
Brooks's sentence is reduced to 120 months of imprisonment; and to

reflect that Brook's term of supervised release is reduced to a

term of three (3) years under the supervision of the United States
District Court for the Western District of North Carolina.

The Clerk is directed to send a copy of this Memorandum
Opinion to counsel of record.
It is so ORDERED.

/s/ /SrV
Robert E. Payne

Senior United States District Judge
Date:

Richmond, Virginia •