United States v. Robert Hairston , 754 F.3d 258 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-8096
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT EARL HAIRSTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:99-cr-00011-RLV-3; 5:12-cv-00021-
RLV)
Argued: May 14, 2014 Decided: June 11, 2014
Before GREGORY and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Reversed and remanded by published opinion. Senior Judge Davis
wrote the opinion, in which Judge Gregory and Judge Thacker
joined.
ARGUED: Stephanie D. Taylor, JONES DAY, Pittsburgh,
Pennsylvania, for Appellant. William Michael Miller, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee. ON BRIEF: Lawrence D. Rosenberg, JONES DAY,
Washington, D.C., for Appellant. Anne M. Tompkins, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
DAVIS, Senior Circuit Judge:
Appellant Robert Earl Hairston pled guilty to conspiracy to
possess with intent to distribute narcotics in 2003. He was
sentenced to 324 months based on a Sentencing Guidelines range
of 324-405 months, taking into account his category IV criminal
history. In 2012, after a state court vacated one of his
convictions which contributed to his criminal history category,
Hairston filed a motion pursuant to 28 U.S.C. § 2255, not his
first one, arguing that the vacatur lowered his criminal history
to category III resulting in a lower Guidelines range. The
district court dismissed the claim under 28 U.S.C.
§§ 2244(b)(3)(a) and 2255(h), holding that Hairston did not meet
the requirements of a permissible second or successive motion to
vacate. We hold that Hairston’s motion is not successive;
accordingly, we reverse and remand.
I
On February 21, 2003, Hairston pled guilty to conspiracy to
possess with intent to distribute cocaine, cocaine base, and
marijuana. In the presentence report (PSR), the Probation
Officer recommended an adjusted offense level of 38, accounting
for Hairston’s leadership role and acceptance of responsibility.
The Probation Officer found a criminal history category of IV
based on five criminal history points and an adjustment for
committing certain offenses while on probation. One of the
2
convictions detailed in Hairston’s history was from November 30,
1991, when Hairston was convicted of the offense of “No
Operator’s License” in Newton, North Carolina, and sentenced to
six months suspended imprisonment and three years probation. The
Probation Officer recommended a final Guidelines range of 324-
405 months.
Hairston objected to the PSR’s inclusion of the criminal
history point on the basis of the North Carolina No Operator’s
License conviction, denying that he was in North Carolina at the
time specified. At the sentencing hearing, however, defense
counsel essentially conceded that Hairston could not disprove
the conviction as detailed in the PSR. The district court
adopted the PSR’s recommendations and pronounced a sentence of
324 months, which was subsequently reduced to 210 months. See
infra n.2.
Within a year of his sentencing, Hairston filed a § 2255
motion to vacate his sentence, which the district court denied
shortly thereafter. 1 Also that year, Hairston filed a motion in
North Carolina state court, seeking to vacate the No Operator’s
1
Hairston grounded his first § 2255 motion on alleged
violations of his Fifth and Sixth Amendment rights, alleging
that: the police had coercively obtained coconspirator
statements; the prosecution had withheld exculpatory
information; and his trial counsel was constitutionally
ineffective.
3
License conviction. Though initially unsuccessful, Hairston
continued to file motions in state court seeking vacatur. Eight
years later, Hairston’s efforts met with success and on August
17, 2011, the state court vacated his No Operator’s License
conviction based on a finding that he was denied assistance of
counsel.
Hairston then returned to federal court, filing his current
§ 2255 motion. He sought a resentencing; without the No
Operator’s License conviction, his criminal history would be
lowered to category III resulting in a Guidelines range of 188-
235 months. 2 On October 10, 2012, the district court dismissed
Hairston’s motion as an unauthorized second or successive motion
pursuant to 28 U.S.C. § 2244(b)(3)(A).
Hairston timely moved for a Certificate of Appealability
(COA) from this Court. On May 9, 2013, we granted the COA on the
following issue: “whether Hairston’s numerically second § 2255
motion is a ‘second or successive’ motion for purposes of 28
U.S.C. § 2255(h), where the basis for his claim did not arise
2
Applying this requested change to his initial sentence
would have reduced his Guidelines range to 292-365 months. In
fact, as a result of two intervening retroactive amendments to
the Sentencing Guidelines for crack cocaine convictions,
Hairston’s base offense level is now 34 rather than 38, and the
district court has previously reduced Hairston’s sentence from
324 months to 210 months, within the now applicable Guidelines
range.
4
until after the district court denied his first § 2255 motion.”
J.A. 147. Thereafter, we appointed counsel to represent Hairston
and calendared the case for argument.
II
As a preliminary matter, the Government argues that in his
plea agreement Hairston waived his right to seek relief under
§ 2255. But as Hairston points out, and we agree, the Government
has waived this waiver argument. See United States v. Metzger, 3
F.3d 756, 757-58 (4th Cir. 1993).
It is long-settled that we “limit [our] review to the
issues raised in the informal brief.” Loc. R. App. P. 34(b). We
have held that where a defendant has signed an appeal waiver,
the Government can utilize one of three options: it can “(1)
raise the appeal waiver issue . . . ; (2) assert that it is no
longer bound by the plea agreement because the defendant’s
appeal amounts to a breach of that agreement; or (3) decline to
rely on the appeal waiver and address the merits.” United States
v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (internal
citations omitted). The Government chose the last option in this
case by failing to raise the issue of waiver in its informal
brief and instead addressing the merits; it is foreclosed from
changing tactics now.
We discern no legitimate reason to decline to hold the
Government to its forfeiture. After we granted a COA to consider
5
the successive motion issue, we ordered the Government to file
its informal brief. Thereafter, the Government sought, and we
granted, an extension of time, nunc pro tunc, giving the
Government an additional five weeks within which to file its
informal brief. The Government chose not to invoke the plea
agreement’s waiver of appeal and post-conviction rights and
instead argued only the merits of the issue on which we granted
a COA. Indeed, the Government urged in its informal brief that
we decide this case without oral argument. It would be a
perverse non-application of Local Rule 34(b), therefore, for us
to entertain the Government’s forfeited argument under the
circumstances of this case and we decline to do so. 3
III
Hairston argues that the district court erred in dismissing
his § 2255 motion as a second or successive motion. We agree.
When considering the denial of a § 2255 motion to vacate,
we review a district court’s legal conclusions de novo. United
3
Albeit in an unpublished opinion, see Jafari v. Old
Dominion Transit Mgmt. Co., 462 Fed. App’x 385, 389-90 (4th Cir.
Jan. 27, 2012), we have enforced Rule 34(b) under circumstances
substantially similar to those presented in this case. There,
the pro se appellant had filed an informal brief that failed to
make an argument as to one claim that had been dismissed by the
district court. He subsequently retained counsel who filed a
formal brief making the forfeited argument and we calendared the
case for oral argument. We enforced Rule 34(b) in that instance
just as we do here. Id. at 389-90.
6
States v. Nicholson, 475 F.3d 241, 248 (4th Cir. 2007). This
Court’s review is limited to those issues for which we have
granted a Certificate of Appealability. Id. at 244; 28 U.S.C.
§ 2253(c)(2).
The Antiterrorism and Effective Death Penalty Act of 1996
mandates that if a defendant has already filed one motion for
collateral relief to vacate, set aside, or correct a sentence, a
second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate
court of appeals to contain--
(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have
found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.
28 U.S.C. § 2255(h).
The district court held that because Hairston had failed to
get the requisite certification from this Court, his motion must
be denied. Hairston argues that his motion should not be
considered within § 2255(h) at all, as it is not truly a “second
or successive petition.” Other circuits have considered the
question of whether a motion is second or successive when the
grounds for challenging the movant’s sentence did not exist at
the time he filed his first motion to vacate, specifically in
the context of asking to reopen a federal sentence after the
7
vacatur of a state conviction. Both the Tenth and Eleventh
Circuits have held that such motions are not second or
successive. In re Weathersby, 717 F.3d 1108, 1111 (10th Cir.
2013); Stewart v. United States, 646 F.3d 856, 863-65 (11th Cir.
2011).
In Stewart, the movant filed a numerically second § 2255
motion requesting vacatur of his career offender enhancement
after a Georgia state court vacated a predicate state
conviction. Stewart, 646 F.3d at 858. The court there began with
a discussion of Johnson v. United States, 544 U.S. 295, 302
(2005), which held that the vacatur of a state conviction
constituted a new fact, restarting the one-year statute of
limitations on § 2255 motions. The Stewart court then pointed to
a decision from the Fifth Circuit, which held that
“‘[i]f . . . the purported defect did not arise, or the claim
did not ripen, until after the conclusion of the previous
petition, the later petition based on that defect may be non-
successive.’” 646 F.3d at 861 (quoting Leal Garcia v.
Quarterman, 573 F.3d 214, 222 (5th Cir. 2009)). The Eleventh
Circuit rejected the Government’s argument that Stewart should
have simply waited to file his first § 2255 motion as
“untenable,” stating that such an approach would “force
petitioners like Stewart to choose between claims available
immediately—such as claims alleging ineffective assistance of
8
counsel—and those available only later—such as Johnson claims.”
Id. at 864. Accordingly, the court held that “because attempting
to raise his Johnson claim in his initial § 2255 petition would
have been an empty formality, Stewart was permitted to raise it
in a second, diligently pursued § 2255 motion.” Id. at 865.
The Government urges us to reject Stewart and its cousin,
Weathersby, instead pointing to Unthank v. Jett, 549 F.3d 534,
535 (7th Cir. 2008). There, the Seventh Circuit held that even
though the vacatur of a state conviction constituted a “new
fact” under Johnson, it was still insufficient under the
requirements of § 2255(h) for considering a second or successive
motion. Id. at 535. Unthank is inapposite, however; the court
there did not even consider the baseline argument that Unthank’s
motion should not be considered second or successive. Indeed,
subsequent case law indicates that the view of the Seventh
Circuit is actually aligned with those of the Tenth and Eleventh
circuits. See United States v. Obeid, 707 F.3d 898, 903 (7th
Cir. 2013) (“Seeing no reason to part ways with our sister
circuits, however, we join them in concluding that a petition or
motion based on a claim that did not become ripe any earlier
than until after the adjudication of the petitioner’s first
petition or motion is not ‘second or successive’ within the
meaning of Sections 2244 and 2255(h).”).
9
In any event, we are persuaded by the reasoning of our
colleagues in the Tenth and Eleventh Circuits. As we have
previously recognized, “it is settled law that not every
numerically second petition is a ‘second or successive’ petition
within the meaning of the AEDPA.” In re Williams, 444 F.3d 233,
235 (4th Cir. 2006) (§ 2254 case); see also Panetti v.
Quarterman, 551 U.S. 930, 942-47 (2007) (holding that a
numerically second § 2254 habeas petition is not governed by the
strictures of § 2244(b)(2) on second or successive petitions
where the claim was not ripe at the time of the initial
petition). Indeed, we have allowed a numerically second § 2255
motion where the claim arose at a resentencing hearing afforded
to a movant as a result of his first § 2255 motion. In re
Taylor, 171 F.3d 185, 187-88 (4th Cir. 1999). There, we
acknowledged that “a claim which did not arise until after a
prior petition was filed” should not be “barred as ‘second or
successive.’” Id. at 187. The same principles apply here. 4
4
See also United States v. Buenrostro, 638 F.3d 720, 725
(9th Cir. 2011) (allowing a numerically second § 2255 motion as
“[p]risoners may file second-in-time petitions based on events
that do not occur until a first petition is concluded”); In re
Jones, 652 F.3d 603, 605 (6th Cir. 2010) (allowing a numerically
second § 2244 motion as “Jones’s ex post facto claim was unripe
when his initial petition was filed-the events giving rise to
the claim had not yet occurred”).
10
In light of our own precedents, we find the reasoning of
Stewart and Weathersby compelling. We hold, therefore, that a
numerically second § 2255 motion should not be considered second
or successive pursuant to § 2255(h) where, as here, the facts
relied on by the movant seeking resentencing did not exist when
the numerically first motion was filed and adjudicated. Here,
Hairston’s claim was unripe at the time his numerically first
motion was adjudicated. Accordingly, in light of the subsequent
vacatur of his state No Operator’s License conviction, which
contributed to the original guidelines calculation of his
federal sentence, his motion was not successive. 5
IV
For the reasons set forth, the judgment of the district
court is reversed and this matter is remanded for further
proceedings consistent with this opinion.
REVERSED AND REMANDED
5
The Government seeks to throw up a number of procedural
barriers to our consideration of Hairston’s claim, arguing that
Hairston’s claim is not cognizable under § 2255; his claim is
procedurally defaulted; and Hairston failed to exercise due
diligence in seeking vacatur of his state conviction. These
issues fall well outside the COA issued in this case and without
expressing any view as to them, we leave it to the district
court to consider these questions in the first instance on
remand.
11