United States District Court, S.D. Illinois
LORENZO A. BROOKS, #19235-044, Petitioner,
B. TRUE, Respondent.
MEMORANDUM AND ORDER
M. YANDLE, UNITED STATES DISTRICT JUDGE
Lorenzo Brooks, an inmate in the United States Penitentiary
located in Marion, Illinois (“USP-Marion”),
brings this habeas corpus action pursuant to 28 U.S.C. §
2241. (Doc. 1). In his Petition (Doc. 1) and Motion for
Relief (Doc. 2), Brooks challenges his enhanced sentence
under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e). See United States v. Brooks,
No. 4:04-cr-00538-JCH-1 (E.D. Mo. 2004). Specifically, Brooks
asserts that his two prior convictions in Missouri for first
degree robbery do not qualify as separate predicate offenses
because a jury did not consider this issue, and without an
enhanced sentence, he would be entitled to immediate release.
(Doc. 1, pp. 6-8; Doc. 2).
matter is now before the Court for preliminary review of the
Petition. Rule 4 of the Federal Rules Governing Section 2254
Cases in United States District Courts provides that upon
preliminary consideration by the district judge, “[i]f
it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner.” Rule 1(b)
gives this Court the authority to apply the rules to other
habeas corpus cases.
2004, Brooks was charged with one count of being a felon in
possession of a firearm, and in 2005, was additionally
charged in a superseding indictment making a false statement
under oath to the court. See United States v.
Brooks, No. 4:04-CR-00538-JCH-1 (E.D. Mo. 2004) (Docs.
1, 52) (“criminal case”). Brooks was found guilty
of being a felon in possession of a firearm following a jury
trial on October 4, 2005. (Docs. 81, 87, criminal case). On
December 20, 2010, he was sentenced as an armed career
criminal to 210 months of imprisonment followed by 3 years of
supervised release. (Doc. 111, criminal case). On direct
appeal, the Eighth Circuit Court of Appeals affirmed his
sentence on July 14, 2011. (Docs. 128, 129, criminal case).
September 2, 2015, Brooks filed a collateral attack of his
sentence and conviction pursuant to 28 U.S.C. § 2255.
Brooks v. United States, No. 15-cv-01378-JCH (E.D.
Mo. 2015). He argued that: (1) he was entitled to a sentence
reduction pursuant to the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015)
(“Ground 1”); (2) his rights were violated by the
use of a Presentence Investigation Report
(“PSR”) to establish the factual basis for his
prior convictions at sentencing (“Ground 2”); and
(3) the Government failed to establish that his two predicate
robbery offenses were separate and distinct criminal episodes
for purposes of the ACCA (“Ground 3'). (Doc. 1,
collateral attack). The district court denied the § 2255
motion on December 4, 2017. (Doc. 23, collateral attack).
With respect to Ground 1, the court held that the two robbery
offenses qualified as predicate offenses under the
“still-valid elements clause” of Section 924(e).
(Id. at pp. 4-5, collateral attack) (collecting
cases). It concluded that grounds 2 and 3 were time-barred.
(Id.). The court dismissed the Motion and declined
to issue a certificate of appealability. (Id.). The
Eighth Circuit subsequently denied Brooks' Application
for a Certificate of Appealability and dismissed his appeal.
Brooks v. United States, App. No. 17-3710 (8th Cir.
dismissed April 25, 2018). Brooks filed several post-judgment
motions to alter or amend the judgment in his collateral
attack, but the district court denied all of them,
including the Motion for Relief Pursuant to
Fed.R.Civ.P. 60(b)(6) (hereinafter “Motion for
Relief”) (Doc. 36) that he filed along with the instant
§ 2241 Petition. (Docs. 34-37, collateral attack; Doc.
§ 2241 Petition and Motion for Relief, Brooks first
claims that no competent evidence established he was
previously convicted of three or more violent felonies or
serious drug offenses “committed on occasions different
from one another.” (Doc. 1, p. 6). He maintains that
the prior robbery convictions occurred at the same time and
were not “separate and distinct criminal
episodes.” (Id. at p. 7) (citing Motion for
Relief at Doc. 2, p. 2). Brooks next claims that the
Presentence Report used to enhance his sentence without a
jury determination on the issue is flawed under the Supreme
Court's recent “Davis” decision.
(Id. at p. 7; Doc. 2) (citing Buck v.
Davis, 137 S.Ct. 759 (2017)). Finally, he argues the
sentencing court's decision to enhance his sentence
without submitting the issue to a jury resulted in a
miscarriage of justice. (Id.) (citing Motion for
Relief at Doc. 2). Brooks seeks resentencing without
application of 18 U.S.C. § 924(e) and immediate release.
(Id. at p. 8; Doc. 2).
a federally convicted person must attack his conviction or
sentence by filing a motion pursuant to 28 U.S.C. § 2255
in the court that sentenced him. Brown v. Caraway,
719 F.3d 583, 586 (7th Cir. 2013). This is normally the
“exclusive means” for a federal prisoner to bring
a collateral attack. Kramer v. Olson, 347 F.3d 214,
217 (7th Cir. 2003). Section 2255 limits a prisoner to a
single challenge. However, when the remedy under § 2255
is “inadequate or ineffective to test the legality of
his detention, ” a prisoner is not without recourse,
and pursuant to § 2255(e)'s savings clause, may
challenge his federal conviction or sentence under 28 U.S.C.
§ 2241 instead. See 28 U.S.C. § 2255(e);
United States v. Prevatte, 300 F.3d 792, 798-99 (7th
Cir. 2002). Section 2255 is considered inadequate or
ineffective when three requirements are met: (1) the prisoner
relies on a “statutory-interpretation case” and
not a constitutional case; (2) the prisoner relies on a
decision that is retroactive on collateral review and could
not have been invoked in his first Section 2255 motion; and
(3) the complained-of error was grave enough to constitute a
“miscarriage of justice.” In re
Davenport, 147 F.3d 605, 611 (7th Cir. 1998); Brown
v. Caraway, 719 F.3d at 586; Brown v. Rios, 696
F.3d 638, 640 (7th Cir. 2012); Montana v. Cross, 829
F.3d 775, 783 (7th Cir. 2016).
the savings clause provides Brooks with no avenue to relief.
In the instant Petition, Brooks raises the same arguments he
made in his § 2255 Motion and Motion for Relief. In
fact, he literally filed the same Motion for Relief on
collateral attack and in this case. As previously noted, the
United States District Court for the Eastern District of
Missouri denied the motion and declined to issue a
certificate of appealability. Section 2255 is not rendered
“inadequate or ineffective” simply because Brooks
was unable to obtain the relief on collateral attack. He must
still satisfy the Davenport requirements.
cites a single case in support of his Petition: Buck v.
Davis, 137 S.Ct. 759 (2017). (Doc. 1, p. 7; Doc. 2, p.
1). However, Buck v. Davis is not a
“statutory-interpretation case;” it is not
retroactive to cases on collateral review; it could have been
and was invoked on collateral attack; and the complained-of
error does not amount to a “miscarriage of
justice.” Moreover, the Supreme Court's decision in
Buck addresses a district court's denial of a
motion to reopen the judgment in a capital murder case and
the standard for issuing a certificate of appealability.
Id. It has no discernable relevance to the
Brooks' § 2241 Petition and he cites no other change
in the law or new facts that warrant another look at his
sentence under the circumstances presented. Accordingly, the
§ 2241 Petition and Motion for Relief will be
DISMISSED with prejudice.
IS HEREBY ORDERED that the Petition for Writ of
Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 1) and
Petition for Relief Pursuant to Fed.R.Civ.P. 60(b)(6) (Doc.
2) are DISMISSED with prejudice.
Petitioner wishes to appeal this dismissal, he may file a
Notice of Appeal with this Court within sixty (60) days of
the entry of judgment. Fed. R. App. P. 4(a)(4). A motion for
leave to appeal in forma pauperis must set forth the
issues Petitioner plans to present on appeal. See
Fed. R. App. P. 24(a)(1)(C). Further, if Petitioner does
choose to appeal and is allowed to proceed IFP, he will be
required to pay a portion of the $505.00 appellate filing fee
in order to pursue his appeal (the amount to be determined
based on his prison trust fund account records for the past
six months) irrespective of the outcome of the appeal.
See Fed. R. App. P. 3(e); 28 U.S.C. §
1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724,
725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d
857, 858-59 (7th Cir. 1999). A proper and timely motion filed
pursuant to Federal Rule of Civil Procedure 59(e) may toll
the appeal deadline. Fed. R. App. P. 4(a)(4). A Rule 59(e)
motion must be filed no more than twenty-eight (28) days
after the ...