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Tenth Circuit Reinstates Colorado Prisoner’s Claim that Requires BOP to Release Him from Imprisonment for Marijuana Possession

On December 16, 2019, the Tenth Circuit Court of Appeals reversed the dismissal of Colorado federal prisoner Aaron Sandusky’s petition for a writ of habeas corpus, thereby remanding the case for further proceedings. The writ claimed that a congressional appropriations rider prohibits the Bureau of Prisons (BOP) within the U.S. Department of Justice (DOJ) from using its funds to prevent any state from implementing its own laws regarding the “use, distribution, possession, or cultivation of medical marijuana.” The implications of this ruling include requiring the DOJ to cease using funds to imprison Sandusky on marijuana-related charges, which would result in his release.

Sandusky was the president of G3 Holistic Inc., a California-based medical marijuana cooperative that grew and sold plants and products. In 2012, he was convicted of conspiracy to manufacture and possess with the intent to distribute both marijuana plants and mixtures containing marijuana. He received two concurrent 120-month federal sentences.

After an unsuccessful appeal in June 2015, Sandusky filed a petition for a writ of habeas corpus in the California sentencing court, seeking to “vacate, set aside, or correct” his sentence, in accordance with 28 U.S.C. § 2255. The petition claimed ineffective assistance of counsel and wrongful imprisonment on the basis of the appropriations rider.

The district court denied the petition in November 2015, holding that, among other things, the claim regarding the appropriations rider could not be raised in a 28 U.S.C. § 2255 petition, seeing that it was a challenge to the execution of the sentence, not to the constitutionality or lawfulness of the conviction or sentence.

Soon thereafter, the Ninth Circuit Court of Appeals ruled in August 2016 on a case involving defendants seeking to avoid federal prosecution for various marijuana offenses. The Court asserted that the DOJ is prohibited “from spending funds from relevant appropriations acts” to prosecute individuals who acted in full compliance with their State Medical Marijuana Laws.

Sandusky then filed an amended petition for a writ of habeas corpus in June 2018, under 28 U.S.C. § 2241 in Colorado’s federal court. In this, he claimed that the appropriations rider prohibited the BOP from spending funds to incarcerate him. He alleged that the conduct for which he was convicted was entirely legal with the then-existing California medical marijuana laws and asserted he was entitled to an evidentiary hearing. If this hearing were to establish his claimed compliance, he would be entitled to immediate release from BOP custody.

The district court concluded that his claim implicated the legality of his sentence and therefore could only be raised in a § 2255 petition. Therefore, it dismissed the petition in early December 2018.

Aided by Colorado federal public defenders Kathleen Shen and Virginia L. Grady, Sandusky appealed. The Tenth Circuit noted that the appropriations rider, originally enacted in 2014, had been enacted multiple times in nearly identical form in appropriations acts passed since then.

The court clarified that § 2241 was the appropriate vehicle to challenge the execution of a sentence, holding that Sandusky’s appropriations act claim was such a challenge. Sandusky was not seeking formal modification of his sentence and would presumably be subject to re-incarceration if, after release, Congress failed to continue enacting new riders.

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Related legal case

Sandusky v. Goetz