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Spates v. United States

United States District Court, District of Kansas

July 10, 2014

PATRICK JEROME SPATES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 11-20038-01-KHV

AGREED ORDER GRANTING MOTION TO VACATE

KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE

On July 9, 2014, the Petitioner, Patrick Jerome Spates, filed a Motion to Vacate, pursuant to 28 U.S.C. § 2255, in light of the Tenth Circuit’s published decision in United States v. Brooks, 751 F.3d 1204 (10th Cir. 2014). The Petitioner asks that this Court vacate his conviction and sentence in Case No. 2:11-cr-20038-KHV because he is actually innocent of the offense of conviction. The underlying offense conduct involved the possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). In light of Brooks, which held that certain Kansas convictions do not qualify as felony convictions for purposes of federal law, the Petitioner asserts that he was not prohibited from possessing a firearm under § 922(g)(1). The government has waived any potential procedural hurdles to relief and does not oppose the motion.

Here, in light of the Tenth Circuit’s decision in Brooks, although the Petitioner possessed a firearm, at the time of his possession, he was not a felon for purposes of ยง 922(g)(1). This is so because his underlying Kansas conviction for Criminal Threat did not carry a statutory maximum sentence of more than one year. Because the Petitioner is actually innocent of the conviction in Case No. 2:11-cr-20038-KHV, the Petitioner is entitled to relief under 28 U.S.C. §2255 and the conviction and sentence must be vacated.

This Court thus VACATES the conviction and sentence in Case No. 2:11-cr-20038- KHV. Because the conviction is vacated, Mr. Spates is to be RELEASED FROM CUSTODY IMMEDIATELY.

IT IS SO ORDERED.


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