1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JACOB ALLEN BROOKS, : 

 Petitioner, : 

 CIVIL ACTION 14-0513-CG-M

v. : 

 CRIMINAL ACTION 11-00157-CG-M

UNITED STATES OF AMERICA, : 

 Respondent. : 

REPORT AND RECOMMENDATION

Pending before the Court is Petitioner’s Motion to Vacate, 

Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 52)1

and Respondent’s Motion to Dismiss (Doc. 56). This action was 

referred to the undersigned Magistrate Judge for report and 

recommendation pursuant to 28 U.S.C. § 636(b) and Rule 8(b) of 

the Rules Governing Section 2255 Cases. It is now ready for 

consideration. The record is adequate to dispose of this 

matter; no evidentiary hearing is required. It is recommended 

that Respondent’s Motion to Dismiss (Doc. 56) be granted, that 

Petitioner’s Motion to Vacate (Doc. 52) be denied, that this 

action be dismissed, and that judgment be entered in favor of 

 1

The pleading was titled “Motion to Re-Open or Other Appropriate 

Remedy” (Doc. 52); U.S. District Judge Granade characterized it as a 

Motion to Vacate (Doc. 53) as there was no objection by Brooks.

Case 1:11-cr-00157-CG-M Document 60 Filed 03/24/15 Page 1 of 8
2

Respondent, the United States of America, and against Petitioner 

Jacob Allen Brooks. It is further recommended that any 

certificate of appealability filed by Petitioner be denied as he 

is not entitled to appeal in forma pauperis.

Brooks was indicted on May 26, 2011 for being a felon in 

possession of a firearm in violation of 18 U.S.C. § 922(g)(1)

(Doc. 1). On July 8, Petitioner filed a Notice of Intent to 

Plead Guilty (Doc. 14). On October 17, Judge Granade sentenced 

Petitioner to fifteen years on the conviction as well as five

years of supervised release following his prison term, and an 

assessment of one hundred dollars (see Doc. 27). 

Represented by new counsel, Brooks appealed his conviction 

(Docs. 29, 33) but, on June 12, 2012, it was affirmed by the 

Eleventh Circuit Court of Appeals (Doc. 49). The Judgment was 

entered as Mandate a month later (see Doc. 50).

Petitioner filed his Motion to Vacate, Set Aside, or 

Correct Sentence under 28 U.S.C. § 2255 on July 25, 20142 in 

which he asserts that a change has occurred in the law that 

requires his resentencing (Doc. 52). On January 6, 2015, the 

Government filed a Motion to Dismiss (Doc. 56) to which Brooks

 2

Under the “mailbox rule,” the date a prisoner delivers a § 2255 

petition to prison authorities is deemed to be the date it was filed 

with the court. See Washington v. United States, 243 F.3d 1299, 1301 

(11th Cir. 2001).

Case 1:11-cr-00157-CG-M Document 60 Filed 03/24/15 Page 2 of 8
3

has replied (Doc. 58). 

The Court notes Respondent’s argument that this action 

should be dismissed because his Motion was not filed within the 

one-year statute of limitations period (Doc. 56, pp. 1-2). 

Respondent refers to provisions of the Anti-Terrorism and 

Effective Death Penalty Act of 1996 (hereinafter AEDPA) which 

amended, in pertinent part, 28 U.S.C. § 2255. The specific 

provisions state as follows: 

A prisoner in custody under sentence of a 

court established by Act of Congress 

claiming the right to be released upon the 

ground that the sentence was imposed in 

violation of the Constitution or laws of the 

United States, or that the court was without 

jurisdiction to impose such sentence, or 

that the sentence was in excess of the 

maximum authorized by law, or is otherwise 

subject to collateral attack, may move the 

court which imposed the sentence to vacate, 

set aside or correct the sentence.

***

A 1-year period of limitation shall apply to 

a motion under this section. The limitation 

period shall run from the latest of--

(1) the date on which the judgment of 

conviction becomes final;

(2) the date on which the impediment to 

making a motion created by governmental 

action in violation of the Constitution 

or laws of the United States is 

removed, if the movant was prevented 

from making a motion by such 

Case 1:11-cr-00157-CG-M Document 60 Filed 03/24/15 Page 3 of 8
4

governmental action;

(3) the date on which the right 

asserted was initially recognized by 

the Supreme Court, if that right has 

been newly recognized by the Supreme 

Court and made retroactively applicable 

to cases on collateral review; or

(4) the date on which the facts 

supporting the claim or claims 

presented could have been discovered 

through the exercise of due diligence.

28 U.S.C. § 2255(f). 

The AEDPA became effective on April 24, 1996. Goodman v. 

United States, 151 F.3d 1335, 1336 (11th Cir. 1998). 

Petitioner’s conviction became final on September 10, 2012

when Brooks’s time to seek certiorari in the U.S. Supreme Court. 

Clay v. United States, 537 U.S. 522, 527 (2003) (“Finality 

attaches when this Court affirms a conviction on the merits on 

direct review or denies a petition for a writ of certiorari, or 

when the time for filing a certiorari petition expires”). 

Petitioner’s Motion to Vacate was filed on July 25, 2014 (Doc. 

52), so it was not filed within the one-year limitations period 

and is barred by AEDPA.

Brooks, however, asserts that his claim only came into 

being with the U.S. Supreme Court’s decision, in Descamps v. 

United States, --- U.S. ---, 133 S.Ct. 2276 (2013), entered on 

Case 1:11-cr-00157-CG-M Document 60 Filed 03/24/15 Page 4 of 8
June 20, 2013 (Doc. 52). Petitioner seeks admission to this 

Court through subsection (3) of § 2255(f) in which the AEDPA 

clock begins running “the date on which the right asserted was 

initially recognized by the Supreme Court . . . and made 

retroactively applicable to cases on collateral review.” 

In Descamps, the Supreme Court held that courts may not use 

the “modified categorical approach” to sentencing a defendant 

under the Armed Career Criminal Act when the statute under which 

the defendant was convicted was made up of a single, indivisible 

set of elements. Descamps, 133 S.Ct. at 2283. The Descamps

Court determined that the enhancement of Descamps’ conviction, 

based on such a conviction, was improper. 

This Court has previously reviewed the Descamps decision

and found that it did not establish a new rule of law. Adams v. 

United States, 2014 WL 2993785, *3 (S.D. Ala. July 3, 2014). 

Furthermore, the Court notes that the Supreme Court, in 

Descamps, failed to make its decision retroactive as required. 

Id. So Brooks fails to meet either prong of 2255(f)(3). As 

such, Descamps is inapplicable here; Brooks’s petition is barred 

by the statue of limitations.

Petitioner has raised one claim in this petition. However, 

as AEDPA bars its consideration, it is recommended that the 

petition be denied and that this action be dismissed. 

Case 1:11-cr-00157-CG-M Document 60 Filed 03/24/15 Page 5 of 8
Furthermore, pursuant to Rule 11(a) of the Rules Governing 

§ 2255 Cases, the undersigned recommends that a certificate of 

appealability (hereinafter COA) be denied. 28 U.S.C. foll. § 

2255, Rule 11(a) (“The district court must issue or deny a 

certificate of appealability when it enters a final order 

adverse to the applicant”). The habeas corpus statute makes 

clear that an applicant is entitled to appeal a district court’s 

denial of his habeas corpus petition only where a circuit 

justice or judge issues a COA. 28 U.S.C. § 2253(c)(1). A COA 

may issue only where “the applicant has made a substantial 

showing of the denial of a constitutional right.” 28 U.S.C. § 

2253(c)(2). Where a habeas petition is denied on procedural 

grounds, “a COA should issue [only] when the prisoner shows . . 

. that jurists of reason would find it debatable whether the 

petition states a valid claim of the denial of a constitutional 

right and that jurists of reason would find it debatable whether 

the district court was correct in its procedural ruling.” Slack 

v. McDaniel, 529 U.S. 473, 484 (2000). As Brooks did not timely 

file this petition, a reasonable jurist could not conclude that 

this Court errs in dismissing the instant petition or that 

Petitioner should be allowed to proceed further. Slack, 529 

U.S. at 484 (“Where a plain procedural bar is present and the 

district court is correct to invoke it to dispose of the case, a 

Case 1:11-cr-00157-CG-M Document 60 Filed 03/24/15 Page 6 of 8
reasonable jurist could not conclude either that the district 

court erred in dismissing the petition or that the petitioner 

should be allowed to proceed further”). 

CONCLUSION

It is recommended that Respondent’s Motion to Dismiss be 

granted (Doc. 56), that Petitioner’s Motion to Vacate filed 

pursuant to 28 U.S.C. § 2255 (Doc. 52) be denied, and that this 

action be dismissed. It is further recommended that any 

certificate of appealability filed by Petitioner be denied as he 

is not entitled to appeal in forma pauperis. Finally, it is 

recommended that judgment be entered in favor of Respondent, the 

United States of America, and against Petitioner Jacob Allen 

Brooks.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who 

objects to this recommendation or anything in it must, within 

fourteen (14) days of the date of service of this document, file 

specific written objections with the Clerk of this Court. See

28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(B); S.D. ALA. L.R.72.4. 

Case 1:11-cr-00157-CG-M Document 60 Filed 03/24/15 Page 7 of 8
In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the 

basis for the objection, and specify the place in the Magistrate 

Judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the Magistrate 

Judge is not specific.

DONE this 23rd day of March, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 1:11-cr-00157-CG-M Document 60 Filed 03/24/15 Page 8 of 8