Michael Farrow v. Sara Revell ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6804
MICHAEL ANTHONY FARROW,
Petitioner - Appellant,
v.
WARDEN SARA M. REVELL,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:12-hc-02193-FL)
Submitted: September 25, 2013 Decided: October 9, 2013
Before WILKINSON and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Michael Anthony Farrow, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Farrow appeals the district court’s order
dismissing his petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2241 (2006). Farrow alleged that,
following our decision in United States v. Simmons, 649 F.3d
237, 244-45 (4th Cir. 2011) (en banc), he was actually innocent
of being a felon in possession of a firearm and of being an
armed career criminal. Farrow had previously filed a direct
appeal and a 28 U.S.C.A. § 2255 (West Supp. 2013) motion, both
of which were resolved adversely to him prior to Simmons. We
affirm the district court with regard to Farrow’s challenge to
his armed career criminal status and vacate and remand for
further consideration of his actual innocence claim.
A federal prisoner who seeks to challenge the legality
of his conviction or sentence generally must proceed pursuant to
§ 2255, while § 2241 petitions are reserved for challenges to
the execution of the prisoner’s sentence. In re Vial, 115 F.3d
1192, 1194 n.5 (4th Cir. 1997). In limited circumstances,
however, § 2255 “is inadequate or ineffective to test the
legality of [the] detention.” 28 U.S.C.A. § 2255(e). Prisoners
relying on this provision (often referred to as the “savings
clause”) may file a petition for a writ of habeas corpus in the
district of confinement pursuant to § 2241. In re Jones, 226
F.3d 328, 333 (4th Cir. 2000).
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In Jones, we concluded that a § 2255 motion is
inadequate or ineffective, and a § 2241 petition may be used to
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.
Id. at 333-34. Initially, we conclude, as the district court
did, that Farrow’s challenge to his armed career criminal status
is not cognizable in a § 2241 petition. See United States v.
Poole, 531 F.3d 263, 267 (4th Cir. 2008) (stating that savings
clause only preserves claims in which petitioner claims actual
innocence of convictions and not just innocence of sentencing
factor).
However, we conclude that Farrow’s actual innocence
claim is eligible for consideration pursuant to the savings
clause. ∗ Circuit law established the legality of Farrow’s
conviction at the time it was entered. Subsequently, and after
Farrow had filed his direct appeal and first § 2255 motion, we
∗
We offer no opinion on the merit of Farrow’s claims. The
district court did not address Farrow’s actual innocence claim,
and therefore it remains undeveloped. We cannot conclusively
say on the record before us that Farrow is not entitled to
relief.
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decided Simmons, which we have recently held to be retroactively
applicable on collateral review. See Miller v. United States,
___ F.3d ___, __, 2013 WL 4441547, at *5 (4th Cir. Aug. 21,
2013). Finally, the gatekeeping provisions in § 2255(h) prevent
Farrow from filing a § 2255 motion to take advantage of the
change in the law because Simmons is not a rule of
constitutional law announced by the Supreme Court. Farrow’s
actual innocence claim thus satisfies the three prongs of the
Jones test and is, therefore, cognizable in a § 2241 petition.
Accordingly, we affirm the district court as to
Farrow’s challenge to his armed career criminal status, and we
vacate and remand for consideration of Farrow’s actual innocence
claim. We grant Farrow leave to proceed in forma pauperis on
appeal. We dispense with oral argument because the facts and
legal contentions are adequately presented in the material
before this court and argument will not aid the decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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