Michael Farrow v. Sara Revell ( 2013 )


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  •                              UNPUBLISHED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    Affirmed in part, vacated in part, and remanded by unpublished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    Unpublished opinions are not binding precedent in this circuit.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).
    2
    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.
    3
    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
    4
    

Document Info

Docket Number: 13-6804

Judges: Wilkinson, Thacker, Hamilton

Filed Date: 10/9/2013

Precedential Status: Non-Precedential

Modified Date: 10/19/2024