United States v. Sylvester Andrews , 463 F. App'x 169 ( 2012 )


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  •                                                                   NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ____________
    No. 10-2088
    ____________
    UNITED STATES OF AMERICA
    v.
    SYLVESTER ANDREWS,
    a/k/a Kazime
    SYLVESTER ANDREWS,
    Appellant
    ____________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. No. 2-92-cr-00671-008)
    District Judge: Honorable Paul S. Diamond
    ____________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    January 23, 2012
    Before: FISHER and GREENAWAY, JR., Circuit Judges, and JONES, * District Judge.
    (Filed: February 29, 2012)
    ____________
    OPINION OF THE COURT
    ____________
    *
    The Honorable John E. Jones, III, District Judge for the United States District
    Court for the Middle District of Pennsylvania, sitting by designation.
    FISHER, Circuit Judge.
    Sylvester Andrews appeals the denial of his Rule 60(b) motion for relief from an
    order dismissing as untimely a petition for habeas relief pursuant to 
    28 U.S.C. § 2255
    .
    For the reasons discussed below, we will reverse the District Court and remand the matter
    for further proceedings.
    I.
    We write principally for the parties, who are familiar with the factual context and
    legal history of this case. Therefore, we will set forth only those facts necessary to our
    analysis.
    On January 28, 1992, Philadelphia warrant officers went to 2350 Orkney Street to
    serve a bench warrant on Renaldo Saez. Upon their arrival, two men ran and jumped
    from the second floor window; one of the men was Sylvester Andrews, who fled. In the
    house, law enforcement found a substantial quantity of crack cocaine packaged for sale, a
    sawed-off shotgun, and an explosive device taped to the back of a washing machine.
    On June 24, 1993, a jury found Andrews guilty of various federal drug and
    weapons offenses arising out of his participation with a drug-trafficking organization
    known as the “New Zulu Nation.” Andrews was sentenced to life on the drug offenses,
    plus a combined 40-year mandatory term of imprisonment based on two violations of 
    18 U.S.C. § 924
    (c) (Counts 18 and 20). Relevant for this appeal, Andrews received a
    30-year term of imprisonment on Count 20 for use of a destructive device during and in
    2
    relation to a drug trafficking crime, in violation of 
    18 U.S.C. § 924
    (c), based on the
    explosive device taped to the washing machine. In 1995, we affirmed the conviction and
    sentence.
    On October 16, 1996, Andrews moved for an extension of time to file a petition
    for habeas relief with the District Court, which never ruled on the motion. On July 30,
    2001, nearly six years later, Andrews filed a petition for a writ of habeas corpus pursuant
    to 
    28 U.S.C. § 2255
    . The District Court denied the petition as time-barred based on the
    one-year statute of limitations. 
    28 U.S.C. § 2255
    (f). This Court then denied Andrews’s
    request for a Certificate of Appealability (“COA”).
    On November 3, 2008, Andrews moved for a reduction of sentence pursuant to 
    18 U.S.C. § 3582
    (c)(2) in response to the Sentencing Commission’s reduction of the base
    offense levels for possession of crack cocaine. The District Court reduced Andrews’s life
    sentence on the drug charges to a term of 360 months, but did not modify the 40-year
    term for Counts 18 and 20.
    On March 29, 2009, pursuant to 
    28 U.S.C. § 2255
    (h) and Rule 9, Andrews
    petitioned this Court for an order authorizing the District Court to consider a second or
    successive habeas petition. Andrews argued that, in light of the decision of Bailey v.
    United States, 
    516 U.S. 137
    , 143 (1995), which held that “use” of a firearm under
    § 924(c) requires active employment of the weapon, he was innocent of the § 924(c)
    3
    conviction in Count 20. Several of his co-defendants had already obtained relief from
    their convictions on Count 20 on identical grounds. We denied his request.
    On November 30, 2009, Andrews filed a motion under Federal Rule of Civil
    Procedure 60(b)(6) seeking relief from the District Court’s dismissal of his 2001 habeas
    petition. Treating the filing as a second or successive habeas petition rather than as a
    60(b) motion, the District Court concluded that it lacked jurisdiction and dismissed
    without prejudice. A subsequent motion for reconsideration was also denied.
    Andrews filed a timely notice of appeal. We granted a Certificate of Appealability
    to resolve the following issue:
    “Whether appellant’s Rule 60(b)(6) motion constituted a challenge to his
    conviction for use of a firearm during and in relation to a drug trafficking
    crime, or instead only challenged the District Court’s failure to reach the
    merits of his challenge to the conviction on his first motion filed under 
    28 U.S.C. § 2255
    ?”
    II.
    The District Court had jurisdiction over Andrews’s petition for habeas relief and
    Rule 60(b) motion under 
    28 U.S.C. §§ 1331
     and 2255. We exercise jurisdiction pursuant
    to 
    28 U.S.C. §§ 1291
     and 2255(d).
    We review the District Court’s denial of a Rule 60(b) motion for abuse of
    discretion. Pridgen v. Shannon, 
    380 F.3d 721
    , 725 (3d Cir. 2004). However, “the legal
    status of the 60(b) motion is an issue of law that we review de novo.” 
    Id.
    4
    III.
    We agree with the parties that the District Court erred in treating Andrews’s 60(b)
    motion as a second or successive claim for habeas relief under 
    28 U.S.C. § 2255
    .
    Although a 60(b) motion constitutes a second or successive petition “if it attacks the
    federal court’s previous resolution of a claim on the merits,” that is not the case “when a
    Rule 60(b) motion attacks . . . some defect in the integrity of the federal habeas
    proceedings.” Gonzalez v. Crosby, 
    545 U.S. 524
    , 532 (2005) (emphasis added); see also
    Pridgen, 
    380 F.3d at 727
     (“[I]n those instances in which the factual predicate of a
    petitioner’s Rule 60(b) motion attacks the manner in which the earlier habeas judgment
    was procured and not the underlying conviction, the Rule 60(b) motion may be
    adjudicated on the merits.”). Critically, a 60(b) motion that challenges a district court’s
    failure to reach the merits of a petition based on the statute of limitations does not
    constitute a second or successive habeas petition. Gonzalez, 
    545 U.S. at 535-36
    ; see also
    Pridgen, 
    380 F.3d at 727-28
     (allowing 60(b) motion that “attack[ed] the habeas
    proceeding, rather than [the] underlying state conviction”).
    In seeking equitable tolling of the one-year limitations period under § 2255,
    Andrews’s 60(b) motion unambiguously challenged the District Court’s failure to reach
    the merits of his habeas petition on timeliness grounds, and not the resolution of the claim
    5
    on the merits. 1 Nevertheless, the District Court stated that “Rule 60(b) relief is not
    available,” but gave no hint of why it found Andrews’s motion to be other than a
    challenge to the application of the one-year statute of limitations. Nor is the reason for
    such treatment readily apparent: the District Court never reached the merits of
    Andrews’s first petition for habeas relief, making it impossible for Andrews to attack the
    resolution of his habeas claim on the merits. See Gonzalez, 
    545 U.S. at 532
    . Moreover,
    Andrews clearly indicated in his motion that he sought equitable tolling of § 2255’s
    statute of limitations. We therefore conclude that the District Court erred in treating the
    60(b) motion as a second or successive habeas petition. 2
    The parties have also briefed – but offer starkly different arguments – why the
    60(b) motion should be granted and the legal basis for relief from the § 2255(f) filing
    period. However, we will not resolve this question because our determination that
    Andrews filed a proper 60(b) motion fully responds to the COA issued for this appeal.
    See 
    28 U.S.C. § 2253
    (c)(1)(B); Miller v. Dragovich, 
    311 F.3d 574
    , 577 (3d Cir. 2002).
    Rather, we will remand to the District Court to consider whether Andrews’s innocence on
    1
    We recognize that a Rule 60(b) motion such as this one, which requests that the
    statute of limitations for a prior petition be equitably tolled for “actual innocence,” may
    require an indirect assessment of the merits of the petitioner’s underlying arguments.
    However, Gonzalez, 
    545 U.S. at 532-36
    , and Pridgen, 
    380 F.3d at 727-28
    , do not indicate
    that we should treat such a motion as the equivalent of an attack on the merits.
    2
    The District Court did not address whether the 60(b) motion was “made within a
    reasonable time,” Fed. R. Civ. P. 60(c)(1), but the Government has expressly chosen to
    waive this defense on appeal in order to permit Andrews to pursue the requested relief.
    6
    Count 20 under Bailey constitutes “extraordinary circumstances” permitting Rule
    60(b)(6) relief. See Gonzalez, 
    545 U.S. at 536-38
    . The District Court should also
    consider whether the Government is correct that it may retroactively waive its timeliness
    defense to Andrews’s Bailey claim on Count 20, cf. United States v. Bendolph, 
    409 F.3d 155
    , 166-67 (3d Cir. 2005) (holding that District Court may sua sponte consider AEDPA
    limitations issue); Robinson v. Johnson, 
    313 F.3d 128
    , 134 (3d Cir. 2002) (holding that
    timeliness of habeas petition is non-jurisdictional and subject to waiver by government),
    or alternatively, whether Andrews is correct that the statute of limitations should have
    been equitably tolled based on his motion for extension of time, see Pabon v. Mahanoy,
    
    654 F.3d 385
    , 399 (3d Cir. 2011), or based on his “actual innocence” of the Count 20
    conviction under Bailey, a question which has not yet been decided by this Court. See
    McKeever v. Warden SCI-Graterford, 
    486 F.3d 81
    , 84 n.5 (3d Cir. 2007). Compare, e.g.,
    David v. Hall, 
    318 F.3d 343
    , 347 (1st Cir. 2003) (“[D]efendants who may be innocent are
    constrained by the same explicit statutory or rule-based deadlines as those against whom
    the evidence is overwhelming . . . .”), with Souter v. Jones, 
    395 F.3d 577
    , 599 (6th Cir.
    2005) (“[E]quitable tolling of [AEDPA’s] one-year limitations period based on a credible
    showing of actual innocence is appropriate.”).
    7
    IV.
    For the reasons set forth above, we will reverse the District Court’s denial of
    Andrews’s Rule 60(b) motion and remand the matter for further proceedings consistent
    with this opinion.
    8