# Brooks v. Hurwitz

> District Court, M.D. Pennsylvania · February 13, 2020

URL: https://www.frixlaw.com/law-library/cases/10408340

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** February 13, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10408340

## How later opinions describe it (automated extraction)

- holding §2241 may not be used to raise an Apprendi v. New Jersey, 530 U.S. 466 (2000) claim that is barred by the procedural limitations imposed by the AEDPA

## Opinion text

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA
CHARLES AARON BROOKS,
Petitioner CIVILACTION NO. 3:19-0302

Vv Bo oe
(JUDGE MANNION)
Warden HUGH J. HURWITZ, :

| Respondent : oe
MEMORANDUM

Petitioner, Charles Aaron Brooks, an inmate currently confined in the
Allenwood Federal Correctional Institution, White Deer, Pennsylvania (“FCI-
Allenwooa’), filed this petition for writ of habeas corpus pursuant to 28 U.S.C.
§2241. (Doc. 1). He challenges his 1996 conviction on five counts of armed
bank robbery and three counts of use of a firearm during a crime of violence.
For the reasons set forth below, the Court will dismiss the petition for writ of
habeas corpus.

I. Backg round
On July 26, 1996, Brooks was convicted by a jury of one count of
conspiracy to commit armed robbery, in violation of 18 U.S.C. §371, four
counts of armed bank robbery, in violation of 18 U.S.C. §21 13(d), and three

counts of using and carrying a firearm during a crime of violence, in violation
of 18 U.S.C. §924(c). United States v. Brooks, E.D. Pa. No. 2:95-cr-564,
criminal docket. He was sentenced on November 13, 1996 to 262 months in
prison, plus mandatory consecutive sentences under the §924(c) counts of
five, twenty and twenty years, for a total sentence of 66 years and ten months
imprisonment. Id. Brooks was also sentenced to three years of supervised
release and ordered to pay a $400 special assessment. Id. The Court of
Appeals affirmed his convictions without opinion on March 13, 1998. United
States v. Brooks, 149 F.3d 1166 (Table) (3d Cir.1998).
On May 29, 2001, Brooks filed a motion pursuant to 28 U.S.C. §2255
~ | to vacate, set aside or correct sentence. Id. On December 27, 2001, the
sentencing court denied Brooks’ §2255 motion, finding without merit Brooks’
claims based on: (1) ineffective assistance of counsel: (2) the court's lack of
jurisdiction because the banks he robbed were not insured by the Federal
Deposit Insurance Commission (FDIC) and the court’s failure to properly
instruct the jury of the banks’ insured status; (3) violations of his Fifth and
Sixth Amendment rights because the grand jury did not return an amended
indictment after the government dismissed two counts against him upon
discovering that a coconspirator had perjured himself and because the court

2

improperly read for the jury the overt acts from the indictment rather than
providing them a copy of a redacted indictment; (4) several claims about
inadmissible evidence including tape recordings at trial; and (5) the
government's failure to introduce evidence at trial sufficient to convict him of
using or carrying a firearm. (Doc. 10-1 at 31-36, United States v. Brooks, No.
Civ. A. 01-1246, 2001 WL 34355638 (E.D. Pa. Dec. 27, 2001)). The Third
Circuit denied a request for a certificate of appealability. United States v.
Brooks, E.D. Pa. No. 2:95-cr-564, criminal docket.
The sentencing court denied three subsequent §2255 motions as
successive because Brooks filed them without first obtaining authorization
from the Court of Appeals and the Third Circuit denied three applications for

leave to file a second or successive motions pursuant to 28 U.S.C. §2255. Id.
By Order dated August 27, 2019, the United States Court of Appeals for

the Third Circuit granted Brooks’ Application for Leave to file Second or

Successive Habeas Corpus Petition and transferred the application to the

District Court. Id.
By Order dated November 25, 2019, the United States District Court for

the Eastern District of Pennsylvania denied Brooks’ motion to vacate, set

aside or correct sentence under 28 U.S.C. §2255, finding the following:

On November 13, 1996, defendant Charles Aaron Brooks
("Brooks") was convicted of armed bank robbery, in violation of 18
U.S.C. §2113(d), conspiracy, in violation of 18 U.S.C. §371, and
using a firearm in furtherance of a crime of violence, in violation
of 18 U.S.C. §924(c) (1) (A) (i). The predicate “crime of violence”
for each §924(c) conviction was armed bank robbery in violation
of §2113(d). The court sentenced Brooks to a term of 45 years’
imprisonment on the three counts of conviction under §924(c),
pursuant to the applicable mandatory minimums, to run
consecutively to a term of 262 months' imprisonment on the
armed bank robbery and conspiracy counts of conviction.
Brooks now seeks to vacate, set aside, or correct his sentence on
his §924(c) convictions based on a claim that the predicate
offenses do not qualify as “crimes of violence.” See United States
v. Davis, 139 S. Ct. 2319 (2019); Johnson v. United States, 135
S. Ct. 2551 (2015). In United States v. Johnson, our Court of
Appeals held that armed bank robbery under 18 U.S.C. §2113(d)
has an element of force and thus qualifies as a crime of violence
under §924(c). See 899 F.3d 191, 202-04 (3d Cir. 2018). Brooks
thus is not entitled to habeas relief. .

United States v. Brooks, E.D. Pa. No. 2:95-cr-564, criminal docket.
On February 22, 2019, Petitioner filed the above captioned petition for
writ of habeas corpus, in which he requests this Court to vacate his 1996

| conviction, raising the following four grounds for relief:
(1) He is actually innocent of his use of firearms
convictions (Counts 3, 5 and 7) because the
government failed to demonstrate his use, carrying or
brandishing of a firearm in light of Bailey v. United □
States, 516 U.S. 137 (1995).
(2) The government failed to establish a required element
of his bank robbery convictions under 18 U.S.C.

§2113(f) by demonstrating the deposits of the bank
branches he robbed were insured by the Federal
Deposit Insurance Corporation.
(3) The government submitted false evidence of the
banks’ FDIC insured status.
(4) The trial court error in failing to redact the name of a
non-indicted co-conspirators confession was _ not
harmless.
(Doc. 1, petition).

ll. Discussion
“[T]he usual avenue for federal prisoners seeking to challenge the
legality of their confinement” is a section 2255 motion. In re Dorsainvil, 119
F.3d 245, 249 (3d Cir. 1997). A challenge to either the validity of a conviction

or to a sentence must be brought in the sentencing court by way of a section
2255 motion. See United States v. Miller, 197 F.3d 644, 648 n.2 (3d Cir.
1999). Here, Petitioner is clearly challenging his conviction and sentence.
Thus, his proper avenue of relief is a section 2255 motion filed in the district
court where he was convicted and sentenced. See section 2255 [5 (the
motion must be filed in “the court which sentenced him’).
A defendant can pursue a §2241 petition only when he shows that the
remedy under section 2255 would be “inadequate or ineffective to test the

legality of his detention.” 28 U.S.C. §2255: see also United States v. Brooks,
230 F.3d 643, 647 (3d Cir. 2000). A motion under §2255 is “Inadequate or
ineffective” only where it is established “that some limitation of scope or
procedure would prevent a 2255 proceeding from affording the prisoner a full
hearing and adjudication of his claim of wrongful detention.” In re Dorsainvil,
119 F.3d at 251-52: Cagel v. Ciccone, 368 F.2d 183, 184 (8th Cir. 1966).
“Critically, §2255 is not inadequate or ineffective merely because the
petitioner cannot satisfy §2255’s timeliness or other gatekeeping
requirements.” Long, 611 F. App’x at 55; see Tripati v. Henman, 843 F.2d |
1160, 1162 (9th Cir. 1988), cert. denied, 488 U.S. 982 (1988): Litterio_v.
Parker, 369 F.2d 395, 396 (3d Cir. 1966) (per curiam). “It is the inefficacy of
the remedy, not a personal inability to utilize it, that is determinative....” Garris

v. Lindsay, 794 F.2d 722, 727 (D.C. Cir. 1986), cert. denied, 479 U.S. 993
(1986). If a petitioner improperly challenges a federal conviction or sentence
under §2241, the petition must be dismissed for lack of jurisdiction.
Application of Galante, 437 F.2d at 1164, 1165 (3d Cir. 1971) (per curiam)
(quoting United States ex rel. Leguillou v. Davis, 212 F.2d 681, 684 (3d Cir.
1954)). Specifically, the Third Circuit has “applied the safety valve where an
intervening and retroactive change in law had decriminalized the petitioner's

«6

underlying conduct, but he had no prior opportunity to challenge his conviction
and could not satisfy the stringent standard for filing a second or successive
§2255 motion.” Long v. Fairton, 611 F. App’x 53, 55 (3d Cir. 2015) (citations
omitted); see In re Dorsainvil, 119 F.3d 245, 251-52 (3d Cir. 1997).
The Third Circuit has also noted that extraordinary circumstances may
justify invoking the savings clause. See Long, 611 F. App’x at 55. The burden
is onthe habeas petitioner to demonstrate inadequacy or ineffectiveness. See
Dorsainvil, 119 F.3d at 251-52: Cagel v. Ciccone, 368 F.2d 183, 184 (8th
Cir. 1966). “Critically, §2255 is not inadequate or ineffective merely because
the petitioner cannot satisfy §2255’s timeliness or other gatekeeping
requirements.” Long, 611 F. App’x at 55; see Tripati v. Henman, 843 F.2d
1160, 1162 (9th Cir. 1988), cert. denied, 488 U.S. 982 (1988); Litterio v.
Parker, 369 F.2d 395, 396 (3d Cir. 1966) (per curiam). “It is the inefficacy of
the remedy, not a personal inability to utilize it, that is determinative....” Garris
v. Lindsay, 794 F.2d 722, 727 (D.C. Cir. 1986), cert. denied, 479 U.S. 993
(1986). If a petitioner improperly challenges a federal conviction or sentence
under §2241, the petition must be dismissed for lack of jurisdiction.
Application of Galante, 437 F.2d at 1165.
However, as recognized in Dorsainvil, a federal prisoner can pursue

relief under §2241 only where a subsequent statutory interpretation reveals

that the prisoner's conduct is not criminal so as to avoid a complete
miscarriage of justice. Dorsainvil, 119 F.3d at 251; see also Okereke v. United
States, 307 F.3d 117. 120-21 (3d Cir. 2002) (holding §2241 may not be used

to raise an Apprendi v. New Jersey, 530 U.S. 466 (2000) claim that is barred
by the procedural limitations imposed by the AEDPA); Brown v. Mendez, 167
F. Supp. 2d 723, 726-27 (M.D. Pa. 2001). “Section 2241 is not available for
intervening changes in the sentencing law,” such as arguments based on ||.

Apprendi. United State v. Kenney, 391 F. App’x 169, 172 (3d Cir. 2010).
Sentencing claims “[do] not fall within the purview of the savings clause.”
Adderly v. Zickefoose, 459 F. App’x 73 (3d Cir. 2012); Pearson v. Warden

|| Canaan USP, 685 F. App’x 93, 96 (3d Cir. 2017) (“§2241 is not available for

an intervening change in the sentencing laws.”).
Here, Petitioner attempts to challenge his 1996 criminal conviction and
sentence, based on issues that have previously been raised, or could have

been raised in a §2255 motion. As discussed above, to proceed under §2241,
he must demonstrate that a §2255 motion “is inadequate or ineffective to test
the legality of his detention.” 28 U.S.C. §2255(e). Petitioner has not met this
burden. As such, his claim does not fall within the purview of the savings

clause, as he has not demonstrated that an intervening change in the law
made his underlying conviction non-criminal and that he had no prior
opportunity to challenge his conviction, and could not satisfy the stringent
standard for filing a second or successive §2255 motion. .
Brooks’ lack of success in his direct appeal or his subsequent §2255 | |
motions does not render §2255 inadequate or ineffective to address his
claims._Bailey v. United States, 516 U.S. 137 (1995), was decided before
Brooks’ conviction on July 26, 1996. Therefore, neither his belated attempt to
raise a Bailey claim, nor the remaining claims challenging issues which arose
during his prosecution and trial do not come within §2241’s safety valve
provision. See Mahasin v. Bledsoe, 505 Fed. App’x 85, 86-87 (3d Cir. 2012)
(Bailey claims asserted for convictions which occurred after the date of the
Bailey decision must be asserted at trial, during direct appeal or in a §2255
motion).

“The remedy afforded under §2241 is not an additional, alternative, or
supplemental remedy to that prescribed under §2255.” Dusenbery v. Oddo,
No. 17-2402, 2018 WL 372164, at *4 (M.D. Pa. Jan. 11, 2018). Because
Petitioner has failed to demonstrate that a §2255 motion is inadequate or
ineffective to test the legality of his detention, permitting him to proceed under

§2241, the Court will dismiss Petitioner's petition for a writ of habeas corpus
under 28 U.S.C. §2241, for lack of jurisdiction. _

lll. Conclusion
Based on the foregoing, Brooks’ petition for writ of habeas corpus will
be DISMISSED for lack of jurisdiction. Because Petitioner is not detained
because of a process issued by a state court and the petition is not brought
pursuant to §2255, no action by this Court with respect to a certificate of
appealability is necessary. An appropriate order follows.

s| WUalachy E. WManution
MALACHY E. MANNION
United States District Judge
Dated: February 13, 2020

10

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10408340. Public record. Not legal advice.