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 § 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 ...