Petition for Writ of Certiorari — Brandon Erwin, Petitioner v. FCI Coleman - Low, Warden

7

No. 18A551

IN THE

SUPREME COURT OF THE UNITED STATES

ALED

'All 3 2ffl°

1

OFFICE OF THE CLEPK

SUPREME COURT

Brandon Erwin,

Petitioner,

VS.

Warden, PCI Coleman Low,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITE]) STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Brandon Erwin

Reg.No.: 48426-018

FCI Coleman Low (C-i)

P.O. Box 1031

Coleman, FL 33521-1031

QUESTIONS PRESENTED

Question 1

The majority of the federal appeallate circuits conclude that § 2255 is

inadequate or ineffective to adjudicte a claim of actual innocence, which

results from a retroactive change in the circuit's controlling law. Thus, a

prisoner may use § 2241 to presert the actual innocence claim. The Eleventh and

Tenth Circuit, however, conclude that § 2255 is at least theoretically adequate

or effective to remedy a claim foreclosed by circuit precedent, thus in the

Eleventh and Tenth a prisoner cannot access § 2241.

Does the Eleventh Circuit too narrowly restrict a district

court's § 2241 corpus jurisdiction?

Question 2

Section 2255 prohibits a district court from taking jurisdiction over a

§ 2241 habeas corpus petition unless a § 2255 motion to vacate is inadequate or

ineffective to test the legality of the detention.

An actual innocence claim untethered to constitutional or jurisdiction

error is not cognizable under 28 U.S.C. § 2255; incognizability is the

paradigmic example on inadequate and ineffective. Thus, § 2255 is inadequate or

ineffective to test the legality of a detention of based on a claim of factual

innocence.

Does the Eleventh Circuit construction of § 2255(e)

improperly restrict a district court's habeas corpus

jurisdiction over actual-innocence claims that are

incognizable under 28 U.S.C. § 2255(a) and (h)?

-1-

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................................................... I

LIST OF PARTIES INVOLVED................................................ii

TABLE OF CONTENTS ......................................................iii

TABLE OF AUTHORITIES ....................................................iv

OPINIONBELOW ............................................................ 1

JURISDICTION.............................................................1

STATEMENT OF THE CASE....................................................1

REASON FOR GRANTING THE WRIT.............................................4

In Burrage v. United States, this Court announced a

retroactively applicable rule of statutory interpretation ........6

The imprisonment of an actually innocent person constitutes

a fundamental miscarriage of justice .............................7

An established circuit split on the meaning of § 2255(e)

produces absurd results .........................................8

Although policy concern should not override a statute's

plain meaning ....................................................10

The Eleventh Circuit and Tenth Circuit definition of § 2255

usurps Congress's authority by altering the district court's

subject-matter jurisdiction.....................................10

CONCLUSION..............................................................11

APPENDICES

APPENDIX A

-

Court of Appeal's Denial

APPENDIX B

-

District Court Denial

APPENDIX C

-

District Court Denial of Reconsideration

APPENDIX D

-

Denial of Application for Second or Successive § 2255

APPENDIX E

-

Letter Extensing Time to File for Writ of Certiorari

APPENDIX F

-

Harrington v. Ormond, 900 F.3d 246 (6th Cir. 2018)

-111-

TABLE OF AUTHORITIES

Cases

Abdullah v. Hedrick,

392 F.3d 957 (8th Cir. 2004) .........................................8

Alaimalo v. United States,

645 F.3d 1042 (9th Cir. 2011) ........................................8

Bousley v. United States,

523 U.S. 614 (1998) ..................................................6

Brandon Erwin v. United States,

Supreme Court, No. 12-7646 (2012) ....................................2

Bruce v. Warden,

2016 U.S. App. LEXIS 14410 (11th Cir. 2016) ..........................8

Bruce v. Warden,

868 F.3d 170 (3d Cir. 2017) ..........................................8

Burrage v. United States,

134 S.Ct. 881 (2014) ............................................passim

Erwin v. United States,

/

11-15538-D (11th Cir. 2012) ..........................................2

Felker v. Turpin,

518 U.S. 651 (1996) ...................................................3

Fowler v. United States,

563 U.S. 668 (2011) ..................................................9

Harrington v. Ormond,

900 F.3d 246 (6th Cir. 2018) .........................................5

Hill v. Masters,

836 F.3d 591 (6th Cir. 2016) .........................................8

House v. Bell,

547 U.S. 518 (2006) ..................................................7

In re Brandon Erwin,

17-11552-C (11th Cir. Apr. 2017) .....................................4

In re Dorsainvil,

119 F.3d 245 (3d Cir. 1997) ..........................................8

In re Smith,

285 F.3d 6 (D.C. Cir. 2002) ..........................................8

-iv-

TABLE OF AUTHORITIES

(Continued)

Cases

Jackson v. Virginia,

443 U.S. 307 (1970) .................................................5

McCarthan v. Director of Goodwill Industries-Suncoast, Inc.,

851 F.3d 1051 (11th Cir. 2017) ..................................passim

Murray v. Carrier,

477 U.S. 478 (1986) .................................................7

Prost v. Anderson,

636 F.3d 578 (10th Cir. 2011) .......................................7

Reyes-Requena v. United States,

243 F.3d 893 (5th Cir 2001) ............................................8

Schriro v. Summerlin,

542 U.S. 348 (2004) ....................................................6

Triestman v. United States,

124 F.3d 361 (2d Cir. 1987) ..........................................3,8

United States v. Barrett,

178 F.3d 34 (1st. Cir. 1999) ...........................................8

United States v. Erwin,

345 Fed. Appx. 482 (11th Cir. 2009) ....................................2

United States v. Wheeler,

886 F.3d 415 (4th Cir. 2018) ...........................................5

United States v. Wheeler,

2018 U.S. App. LEXIS 15753 (4th Cir. June 11, 2018)(denying rehearing en

banc) ..................................................................5

Other Rules and Statutes:

18 U.S.C. § 1512(a)(1) .....................................................8,9

21 U.S.C. §§ 841(a)(1), (b)(1)(C) ......................................passim

26 U.S.C. § 7212 ............................................................10

28 U.S.C. § 2241 .......................................................passim

28 U.S.C. § 2255 .......................................................passim

28 U.S.C. § 2255(e) ....................................................passim

-v-

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Eleventh Circuit

appears at Appendix "A" to the petition and is not yet published for review.

The opinion of the United States District Court appears at Appendix "B" to

the petition and is reported at: 2017 U.S. Dist. LEXIS 215542 (M.D. Fla. July

31, 2017).

The opinion of the United States District Court denial of the motion for

reconsideration appears at Appendix "C".

The Application to the Eleventh Circuit Court of Appeals to file a second

or successive 28 U.S.C. § 2255 motion appears at Appendix "D", and the grant of

an extension of time to file a petition for a writ of certiorari up to and

including January 19, 2019, appears at Appendix "E".

JURISDICTION

The date on which the United States Court of Appeals decided Mr. Erwin's

case was August 22, 2018. (App. "A"). On November 28, 2018, an extension of time

to file the petition for a writ of certiorari was granted to and including

January 19, 2019 in Application No. 18A551 (App. "C"). The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

STATEMENT OF THE CASE

(Course of Proceedings)

On January 26, 2006, the United States indicted Mr. Erwin for three

violations of 21 U.S.C. H 841(a)(1), (b)(1)(C). Count One and Three were for

possession with intent to distribute NDMA, and Count Two was possession with

intent to distribute methadone. (Crim. Doc. 14). On October 5, 2006, the

government filed a superseding indictment. (Crim. Doc. 54). Count One was

-I-

conspiring to possess cocaine, methadone, and MDMA with intent to distribute.

Count Two was distributing methadone and cocaine, the use of which resulted in

the death of Mr. Erwin's longtime friend, Andrew Culver. Counts Three and Five

were for distributing MDMA. Count Four was distributing methadone.

In 2007 at trial, defense counsel argued that the drugs Mr. Erwin provided

did not cause Mr. Culver's death. (Crim. Doc. 146). Mr. Culver had spent several

days in a hotel room binging on numerous drugs and consuming alcohol. Mr.

Erwin's drugs were among those consumed by his friend, Mr. Culver. (Crim. Doc.

143). The government, contended that as long as the drugs sold by Mr. Erwin

contributed to Mr. Culver's death, then Mr. Erwin violated the more severe crime

contained in § 841(b)(1)(C). The jury found Mr. Erwin guilty on all charges.

(Crim. Doc. 147). Mr. Erwin was sentenced to 20 years imprisonment for each of

the 5 counts.

On February 17, 2009, Mr. Erwin appealed the criminal judgment. (Crim. Doc.

114). On September 21, 2009, the Eleventh Circuit affirmed Mr. Erwin's

conviction and sentence. United States v. Erwin, 345 Fed.Appx. 482 (11th Cir.

2009) 07-15173-HH.

On December 13, 2010, Mr. Erwin timely filed a 28 U.S.C. § 2255 motion.

(8:10-cv-2781-T30EAJ)(M.D. Fla. 2010)(Doc. 1). On September 16, 2011, with the

benefit of an evidentiary hearing, the district court denied Mr. Erwin's 28

U.S.C. § 2255 motion. (Doc. 18).

On November 15, 2011, Mr. Erwin timely filed a notice of appeal and request

for Certificate of Appealability, which the Eleventh Circuit denied. Erwin v.

United States, Appeals No. 11-15538-D (11th Cir. 2012).

On October 26, 2012, Mr. Erwin filed a petition for writ of certiorari.

Erwin v. United States, No. 12-7646 (2012). Mr. Erwin claimed that:

-2-

-

"[t]he enhanced penalty in § 841(b) should also be found

unconstitutional or excised under the void-for-vagueness

doctrine because persons of common intelligence must

necessarily guess as to what is prohibited under. §

841(a) and make a guess as to which words in Section

§ 841(b) are sentencing factors and which are elements

of the prohibited acts of § 841(a). § 841 'death

resulting' provision is also unconstitutional because it

is open to arbitrary application and is so broad as to

include innocent acts."

On January 14, 2012, the petition for certiorari was denied. Id.

In December 2014, after this Court's decision in Burrage v. United States,

134 S.Ct. 881 (2014), Mr. Erwin filed a petition under 28 U.S.C. § 2241 claiming

that he was actually innocent of the "death results from" variant of

§ 841(b)(1)(C) and that his current detention resulted from that wrongful

conviction (§ 2241 Doc. 1, grounds 2 & 3), and a sentencing error that only

ripened into a claim after his § 2255 concluded. Id. at Grounds 1 and 2. Neither

the factual-innocence error, nor the late-ripening sentencing error, could ever

have been raised under § 2255, thus either § 2241 must be available to test the

detention, or an unconstitutional peacetime suspension of habeas corpus has

occurred. / 1

In October, 2017, the district court dismissed Mr. Erwin's § 2241 for lack

of subject-matter jurisdiction citing Eleventh Circuit's en banc decision in

NcCarthan v. Director of Goodwill Industries-Suncoast, Inc., 851 F.3d 1051 (11th

Cir. 2017)(en banc)(cementing that, in the habeas context, § 2255(e) is

synonymous with incognizability)( 2241 Doc. 23, 26).

Mr. Erwin sought reconsideration of the dismissal, in part because, during

the pendancy of the § 2241, Mr. Erwin applied for authorization to file a second

or successive § 2255 petition grounded on the substantive rule identified in

1. See generally Triestman v. United States, 124 F.3d 361 (2d Cir. 1997).

Felker v. Turpin, 518 U.S. 651 (1996).

-3-

Burrage.

The Eleventh Circuit denied Mr. Erwin's petition stating

" ...the

[Supreme] Court did not announced a new rule of constitutional law, but instead

used rules of statutory construction to interpret a substantive criminal

statute." In re Brandon Erwin, No. 17-11552-C (11th Cir. Apr. 2017).

The Eleventh Circuit's holding (that the Burrage rule did not create a

constitutional claim) did not persuade the district court that it had § 2241

jurisdiction. The district court refused to reconsider its October 17, 2011

dismissal of the § 2241 motion.

On May 7, 2018, Mr. Erwin appealed the denial by the district court to the

Eleventh Circuit. (Appeals No. 17-15080-HH). Mr. Erwin raised whether the

district court has jurisdiction to hear an actual innocence claim under to

§ 2241. And whether the circuit-precedent-changing retroactivity applicable rule

from of this Court identified a scenario § 2255 was in inadequate or ineffective

to test the legality of a petitioner's detention.

On August 22, 2018, citing NcCarthan the Eleventh Circuit summarily denied

Mr. Erwin's appeal. Stating "Erwin's challenge to his conviction under Burrage

is a challenge to his underlying conviction and sentence, rather than the

execution of his sentence. And that, "... the district court lacked jurisdiction

to consider Erwin's § 2241 petition." (Appendix "A").

Mr. Erwin proceeds with a petition for writ of certiorari with this Court.

REASONS FOR GRANTING THE WRIT

A deep and mature disagreement exists among the federal circuit court of

appeals on whether 28 U.S.C. § 2255(e) permits a prisoner to submit a

traditional writ of habeas corpus when a retroactive Supreme Court rule shows

the prisoner is actually innocent of a particular crime.

In 2018, that divide in circuit-court opinion became more pronounced. The

Fourth Circuit reaffirmed its traditional position that certain actual innocence

-4-

-

claims are cognizable under § 2241. Furthermore, the Fourth Circuit expressly

rejected the Eleventh Circuit's minority view that § 2241 did not permit actualinnocence claims based on a retroactive change in the law. United States v.

Wheeler, 886 F.3d 415 (4th Cir. 2018) (rejecting the Eleventh Circuit's holding

in McCarthan v. Director of Goodwill Indus tries-Suncoas t, Inc., 851 F.3d 1076

(11th Cir. 2017) (en banc)).

In denying the government's petition for rehearing, the Fourth Circuit

expressly stated that it would be best for this Court to address the issues

concerning the construction of 28 U.S.C. § 2255(e) including the availability of

habeas corpus to adjudicate claims based on retroactively-applicable changes in

the law which implicate either actual innocence or a fundamentally flawed

sentence. See United States v. Wheeler, 2018 U.S. App. LEXIS 15753 (4th Cir.,

June 11, 2018) ("The issues [concerning § 2241] are of significant national

importance and are best considered by the Supreme Court at the earliest possible

date in order to resolve an C'existing and broadening circuit split".))

Mr. Erwin presents this Court with a factual scenario to resolve these

questions. In Burrage, this Court announced a rule that makes Mr. Erwin actually

innocent of the crime for which he is imprisoned. The actual innocence, as

opposed to a flawed sentence, scenario is illustrated by the Sixth Circuit's

analysis of this Court's reasoning, "[in Burrage, the Court referred to the

death-results enhancement as 'an element that must be submitted to the jury and

found beyond a reasonable doubt." Barrington v. Ormond, 900 F.3d 246 (6th Cir.

2018) (attached as Appendix "F") (quoting Burrage, 571 U.S. at 218-19).

Accordingly, if the "death results" element is not proven, then Mr. Erwin

is actually innocent of the "death results" variant of § 841(a)(1), (b)(1)(C).

See generally Jackson v. Virginia, 443 U.S. 307 (1970)(innocence occurs when all

the elements of a particular crime are not proven beyond a reasonable doubt).

-5-

That brings us to

question that haunts the nation's judiciary: does the

Constitution permit the government to imprison a person based on conduct that

the law does not prohibit; conduct that the law does not define as criminal?

Mr. Erwin briefly sets the intellectual stage by showing that this Court's

Burrage-rule is retroactively applicable and that it applies to Mr. Erwin.

Thereafter, Mr. Erwin shows why this Court should resolve this substantial issue

that divides the Court of Appeals.

1. In Burrage v. United States, this Court announced a retroactively

applicable rule of statutory interpretation that narrowed the scope of

conduct prohibited by 21 U.S.C. § 841(a)(1), (b)(1)(C).

In 2014, this Court interpreted 21 U.S.C. § 841(a)(1), (b)(1)(C)'s term

"death results". Burrage v. United States, 571 U.S. 204, 134 S.Ct. 881 (2014).

This Court more precisely defined "death results" as requiring that the

particular drugs distributed were "a but-for cause of [the] death." Id. at 218219. In other words, "where use of the drugs distributed by the defendant is not

an independent cause of the victim's death or serious bodily injury, a defendant

cannot be liable under § 841(b)(1)(C)." Id. In essence, this Court's statutory

interpretation narrowed the range of prohibited conduct, therefore the rule

applies retroactively to cases on collateral review. Schriro v. Swnmerlin, 542

U.S. 348, 351 (2004) (citing Bousley v. United States, 523 U.S. 614, 620-21

(1998).

Mr. Erwin's conviction involved his introducing two people to each other

for the purpose of one acquiring pain medication. The jury found that the

brokered drugs contributed to the death of the purchaser. As a result of an

overbroad construction of § 841(b)(1)(C)'s term "death results" the

district court imposed a mandatory 20 year sentence.

Mr. Erwin and his victim, Mr. Culver, were friends. Prior to Mr. Culver's

death, Mr. Culver was at Mr. Erwin's place of residence complaining about a

tooth ache and the delay in being able to set up a dental visit. Mr. Culver

asked if Mr. Erwin had any pain killers, and Mr. Erwin replied that he could

I

make a phone call. Mr. Erwin called James Gore who met with Mr. Culver and

provided Mr. Culver with what turns out to have been Methadone pills. Mr. Erwin

had instructed the two men to deal with each other as he was just introducing

the two men, thus Mr. Erwin did not (does not) know the quantity of Methadone

provided. Mr. Erwin further instructed for them to exchange phone numbers, that

way "I am not in the middle of it." Unfortunately, for all involved, Mr. Culver

died, and Mr. Erwin's "moment in the middle" turned into a generation of his

life.

After a jury trial in which neither Mr. Erwin nor Mr. Gore testified, the

district court found Mr. Erwin guilty of distributing drugs that contributed to

Mr. Culver's death, in violation of 21 U.S.C. § 841(b)(1)(C)'s "death results"

enhancement. And as a result of that jury finding, the district court imposed a

mandatory minimum statutory sentence, rather than the 5-year Guidelines

sentence, which otherwise would have applied.

2.

The continued imprisonment of an actually innocent person tears asunder the

fabric of American tradition and shatters a foundational principle of the

Constitution.

This Court and all circuit courts have recognized—albeit in obiter

dicta—that a serious constitutional issue would arise if an actually innocent

person were forced to remain in prison and derived of any judicial process to

remedy the wrongful detention. See, e.g., Murray v. Carrier, 477 U.S. 478, 496

(1986) (A fundamental miscarriage of justice results from conviction of one who

is actually innocent); accord House v. Bell, 547 U.S. 518 (2006).

Mr. Erwin's petition presents a claim that he is actually innocent of the

"death results" variant of 841(b)(1)(C). Under the Eleventh Circuit and the

Tenth Circuit's reading of 28 U.S.C. § 2255(e), Mr. Erwin has no procedural

recourse. See McCarthan v. Director of Goodwill Indus tries-Suncoas t Inc., 851

F.3d 1076, 1080 (11th Cir. 2017); Prost v. Anderson, 636 F.3d 578 (10th Cir.

-7-

2011)(Gorsuch, J.)

.

On the other hand every other federal circuit provides,

through one test or another, that a prisoner may use § 2241 to prove that the

prisoner's imprisonment unlawful; either that the prisoner is either factually

innocent or convicted for a non-existent offense. See, e.g., Hill v. Masters,

836 F.3d 591, 594-95 (6th Cir. 2016); Alaimalo v. United States, 645 F.3d 1042,

1047-49 (9th Cir. 2011); Abdullah v. Hedrick, 392 F.3d 957, 963-64 (8th Cir.

2004); In re Smith, 285 F.3d 6, 8 (D.C. Cir. 2002); Reyes-Requena v. United

States, 243 F.3d 893, 904 (5th Cir. 2001), United States v. Barrett, 178 F.3d

34, 52 (1st Cir. 1999); In re Davenport, 147 F.3d 605, 611-12 (7th Cir. 1998);

Triestinan v. United States, 124 F.3d 361, 363 (2d Cir. 1997); In re Dorsainvil,

119 F.3d 245, 248, 251 (3d Cir. 1997).

A particularly disturbing feature of the Court of Appeals jurisprudence is

that where the United States imprisons a person determines if the persons

actual innocence is relevant. If the United States had imprisoned Mr. Erwin in

Pennsylvania, Michigan, Louisiana, California, or 40 states other than the

Florida (or its Tenth and Eleventh Circuit siblings), then he likely would have

been released to supervised release several years ago.

3.

The current circuit divide produces absurd and fundamentally unjust

results. In one circuit a prisoner may be heard in § 2241, while his

brother and codefendant---which is housed in a different prison for the

same crime---cannot be heard. An unjust and ludicrous result of the circuit

divide.

The integrity eroding scenario played itself out in the cases of Bruce v.

Warden, 2016 U.S. App. LEXIS 14410 (11th Cir. 2016)(unpublished) and Bruce v.

Warden, 868 F.3d 170 (3d Cir. 2017). Among the crimes, the jury convicted the

two Bruces of violating 18 U.S.C. § 1512(a)(1), that is, the killing or

attempting to kill with intent to prevent communications with federal law

enforcement.

In Fowler v. United States, 563 U.S. 668 (2011), this Court clarified the

mens rea element of § 1512. In doing so, this Court narrowed the range of

conduct prohibited by § 1512(a)(1). Consequently, both Bruces believed they were

innocent of that particular count of conviction. Both sought relief under § 2241

asserting that § 2255 was inadequate and ineffective to remedy a now illegal

detention. Stated otherwise, the two Bruces claimed that the new retroactively

applicable

Fowler

rule overturned circuit precedent and showed they were

innocent.

And here is where real life gets stranger than fiction. The Third Circuit

allowed Charles Bruce to petition for relief under § 2241. While the Eleventh

Circuit held "the district court lacked jurisdiction to consider the merits of

(his brother Robert) Bruce's petition

In sum, as the circuit conflict stands, some prisoners are eligible to file

§2241 petitions and other similarly-situated prisoners are not. Also some

federal district courts have greater subject-matter jurisdiction than others. A

jurisdictional anomaly that constitutionally cannot be allowed to persist since

legally, in the absence of express direction from Congress, one district court

cannot have greater authority and power than another.

Effectively the split in circuit has judicially redefined the district

court's subject-matter jurisdiction. An usurpation of Congress's authority

strictly forbidden by the Constitution's separation-of-powers doctrine.

This Court should grant the writ to resolve the circuit split and correct

the anomaly on the substantial issue of whether a circuit court may through

decisional authority alter a district court's jurisdiction.

MOM

4.

Although policy concerns should not alter a plain textual meaning in this

context alternative results help point to the text's meaning.

Although policy consideration should not dictate textual interpretation, a

valid use of policy is to determine if any particular statutory interpretation

generates results that necessarily contradict the textual purpose or are

otherwise absurd.

One of § 2255's primary purposes was to ease the burden's on federal

district courts caused by of hearing habeas actions involving criminal judgment

from other districts. The existing circuit split cuts against that principle.

Now, federal prisoners have an incentive to prison shop. By example, a prisoner

with a 26 U.S.C. 7212 conviction who has exhausted his orthodox remedies has

every incentive to transfer from the Tenth Circuit to the Second Circuit in

order to take advantage of the Second Circuit's more generous definition of

2255(e).

This Court should grant certiorari in order to resolve the circuit split

and extinguish the need for prisoners to forum shop.

5. The Eleventh and Tenth Circuit definition of § 2255(e) alters the district

court's subject-matter jurisdiction, effectively violating the separation

of powers doctrine.

Congress created a single United States District Court with 97 districts.

Congress granted each district courts the same subject matter jurisdiction. The

existing circuit split on § 2255(e) narrows the jurisdiction of the district

courts in the Tenth and Eleventh Circuits.

Three constitutional problems arise from the sustained circuit conflict:

An equal protection problem exists; some citizens have access to a more

expansive writ of habeas corpus a others.

The circuit courts effectively usurped Congress's authority to determine

• a district court's subject-matter jurisdiction.

When the statedeprives a person of his liberty for conduct that has not

been identified as a crime the government violates substantive due

process.

-10-

All of which are only a reflection of a more fundamental problemthat as a

practical matter, the Antiterrorism Effective Death Penalty Act suspended habeas

corpus for citizens who are actually innocent of a conviction, especially when

actual innocence is established by an retroactively-applicable, statutoryinterpretation rule announced by the Supreme Court.

CONCLUSION

For twenty-five years, the Circuits in the Court of Appeals have disagreed

on when a § 2255 motion is inadequate or ineffective to remedy a detention made

illegal by a retroactively applicable rule of statutory interpretation. For a

longer time, this Court has left unsettled when a freestanding claim of actual

innocence (e.g. factual innocence) may be heard on habeas corpus. This Court

should grant a writ of certiorari, bring Mr. Erwin's case before it, and resolve

both the substantial questions of law, and should close the circuit split.

Respectfully submitted on this

I I day of January, 2019 by:

/

Brandon Erwin

Reg.No.: 48424-018

FCI Coleman Low

P.O. Box 1031

Coleman, FL 33521-1031

VERIFICATION

Under the penalty of perjury pursuant to 28 U.S.C. § 1746, I declare that

the factual allegations contained in this filing are true and correct to the

best of my knowledge.

'Brandon Erwin

-11-