Brooks v. Hurwitz

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

CHARLES AARON BROOKS, :

Petitioner : CIVIL ACTION NO. 3:19-1500

v. : (JUDGE MANNION)

HUGH J. HURWITZ, :

Respondent :

MEMORANDUM

Petitioner, Charles Aaron Brooks (“Petitioner”), an inmate currently

confined in the Allenwood United States Penitentiary, White Deer,

Pennsylvania, filed the above captioned 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. Id. Following an order to show cause, (Doc. 7)

Respondent filed a response on November 21, 2019. (Doc. 8). A traverse

was filed on May 29, 2020. (Doc. 10). Accordingly, the petition is ripe for

disposition. For the reasons that follow, the Court will dismiss the petition for

lack of jurisdiction.

I. Background

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. §2113(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. United States v. Brooks, E.D. Pa.

No. 2:95-cr-564, criminal docket. 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

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. 8-1 at 31, 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 at Doc. 254.

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. at Docs. 266, 276, 329, 369, 399, 410).

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. (Doc. 8-1 at 35, United States v. Brooks, E.D. Pa. No. 445 (3d

Cir., Aug. 27, 2019)).

On August 29, 2019, Petitioner filed the above captioned petition for

writ of habeas corpus in which Brooks claims that he was improperly

sentenced to three years supervised release and two claims which appear

to be based on the Supreme Court’s decision in Johnson v. United States,

135 S. Ct. 2551 (2015). (Doc. 1).

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 at Doc. 447.

II. 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.” 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 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). 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 Brooks’

challenge to his three-year term of supervised release merely because he

failed to raise that argument at the proper time. Moreover, his lack of success

to challenge his §924(c) convictions and career offender status in his

successive §2255 before the District Court for the Eastern District does not

satisfy the stringent gatekeeping limitations

“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.

III. Conclusion

For the foregoing reasons, Brooks’ petition for a writ of habeas corpus

pursuant to 28 U.S.C. §2241, will be dismissed for lack of jurisdiction. A

separate Order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: December 30, 2020

19-1500-01