Gordon Miller v. United States ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6254
GORDON LEE MILLER,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent – Appellee.
-------------------------
RICHARD DONALD DIETZ,
Court-Assigned Amicus Counsel.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:12-cv-00701-RJC; 3:07-cr-00059-
RJC-1)
Argued: June 25, 2013 Decided: August 21, 2013
Before KING, DIAZ, and FLOYD, Circuit Judges.
Vacated and remanded by published opinion. Judge Floyd wrote
the opinion, in which Judge King and Judge Diaz joined. Judge
King wrote a separate concurring opinion.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. Richard Donald Dietz, KILPATRICK
TOWNSEND & STOCKTON, LLP, Winston-Salem, North Carolina, for
Court-Assigned Amicus Counsel. ON BRIEF: Henderson Hill,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, Charlotte, North Carolina, for
Appellee.
2
FLOYD, Circuit Judge:
Petitioner Gordon Lee Miller appeals the dismissal of his
28 U.S.C. § 2255 motion to vacate his conviction for violating
18 U.S.C. § 922(g)(1)—possession of a firearm by a convicted
felon. Miller was convicted for a single count of possession of
a firearm by a convicted felon. Four years later, Miller filed
a motion to vacate his conviction pursuant to 28 U.S.C. § 2255,
arguing that under this Court’s decision in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), he was innocent
of the firearm offense. We agree and for the reasons that
follow vacate his conviction and remand with instructions to
grant Miller’s § 2255 petition.
I.
This appeal arises from Miller’s 2008 conviction for a
single count of possession of a firearm by a convicted felon,
violating 18 U.S.C. § 922(g)(1). On March 27, 2007, the Grand
Jury for the Western District of North Carolina charged Miller
with possessing a firearm after having been previously convicted
of one or more crimes punishable by imprisonment for a term
exceeding one year. At the time of Miller’s trial, he had
previously been convicted in North Carolina for felony
possession of cocaine, for which he was sentenced to six to
eight months in prison. He was then convicted in North Carolina
3
for threatening a court officer, for which he was also sentenced
to six to eight months in prison. Pursuant to North Carolina’s
Structured Sentencing Act, the maximum sentence that Miller
could have received for either offense—based on his prior record
level—was eight months. N.C. Gen. Stat § 15A-1340.17(c), (d).
At the time of trial, under then valid precedent, Miller’s
convictions were considered to be “punishable by imprisonment
for a term exceeding one year.” 18 U.S.C. § 922(g)(1). After
the jury found Miller guilty, the district court sentenced him
to seventy-two months’ imprisonment followed by three years of
supervised release. Miller chose not to appeal this ruling.
However, four years later, in 2012, Miller filed a 28
U.S.C. § 2255 motion to vacate his conviction. Miller contends
that in light of this Court’s decision in Simmons he is innocent
of the § 922(g)(1) firearm offense because he did not have any
qualifying predicate convictions. Alternatively, Miller sought
relief under 28 U.S.C. § 2241 by way of a writ of error coram
nobis or by a writ of audita querela. The government agreed
with Miller’s position and, after waiving the statute of
limitations, 1 which would normally bar Miller’s motion as
1
28 U.S.C. § 2255 includes a one-year statute of
limitations for filing a motion to vacate. This period runs
from the latest of:
(1) the date on which the judgment of conviction becomes
final;
4
untimely, asked the district court to vacate Miller’s
conviction.
To understand Miller’s claim that he is actually innocent
of the firearms offense, we begin by explaining the line of
precedent on which he relies. First, in 2010, the Supreme Court
decided Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010),
which held that whether a conviction is, for purposes of the
Immigration and Nationality Act, an “aggravated felony” must be
determined by looking at the defendant’s actual conviction and
not the offense for which he could have possibly been convicted
based on his conduct. To qualify as an aggravated felony the
crime must be one for which “the ‘maximum term of imprisonment
authorized’ is ‘more than one year.’” Id. at 2581 (quoting 18
U.S.C. § 3559(a)).
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed,
if the movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through
the exercise of due diligence.
28 U.S.C. § 2255(f)(1)-(4).
5
After Carachuri, the Supreme Court asked us to reconsider
our initial panel decision in Simmons, in which we held that
Simmons’s prior state conviction for which he faced no
possibility of imprisonment was an offense punishable by
imprisonment for more than one year that allowed a sentence
enhancement. 649 F.3d at 240-41. Previously, “‘to determine
whether a conviction is for a crime punishable by a prison term
exceeding one year’ under North Carolina law, ‘we consider[ed]
the maximum aggravated sentence that could be imposed for that
crime upon a defendant with the worst possible criminal
history.’” Id. at 241 (quoting United States v. Harp, 406 F.3d
242, 246 (4th Cir. 2005)). Upon rehearing the case en banc,
this Court changed course, overruling long-standing precedent,
and vacated Simmons’s sentence in light of Carachuri. The Court
held that a prior conviction under North Carolina law is
punishable by more than one year of imprisonment only if the
defendant’s conviction, based on his individual offense
characteristics and criminal history, allowed for such a
sentence. Id. at 244. Therefore, we no longer look “to the
maximum sentence that North Carolina courts could have imposed
for a hypothetical defendant who was guilty of an aggravated
offense or had a prior criminal record.” United States v.
Powell, 691 F.3d 554, 556 (2012).
6
After Simmons, this Court then decided Powell. In Powell,
the defendant brought a 28 U.S.C. § 2255 motion seeking to
vacate his conviction in light of the Supreme Court’s decision
in Carachuri. 691 F.3d at 555. Powell urged this Court to
apply Carachuri in the same way that we had previously applied
it in Simmons to vacate his sentence under North Carolina law.
Id. at 556-57. This Court declined to do so and found that
Carachuri announced a procedural rule that was not retroactive
on collateral review. Id. at 560-61. This Court reasoned that
Carachuri was a procedural rule because it “at most altered the
procedural requirements that must be followed in applying
recidivist enhancements and did not alter the range of conduct
or the class of persons subject to criminal punishment.” Id. at
559-60.
On February 15, 2013, the district court denied Miller’s
motion to vacate. It acknowledged the government’s waiver of
its statute-of-limitations defense but held that Miller’s claim
failed because, under Powell, Simmons is not retroactively
applicable on collateral review. Thus, Miller was not entitled
to relief. The district court also denied Miller’s alternative
claims for relief. The district court granted a certificate of
appealability (COA), and Miller then timely appealed to this
Court. Because Miller and the government contend that the
district court’s ruling was erroneous and his conviction should
7
be vacated, we appointed Amicus Curiae to defend the reasoning
of the district court. We have jurisdiction pursuant to 28
U.S.C. § 2253(c)(1). 2
II.
Miller argues that pursuant to our decision in Simmons his
conviction under 18 U.S.C. § 922(g)(1) must be vacated. Under
§ 922(g)(1), it is unlawful for a person to possess a firearm if
he “has been convicted in any court of[] a crime punishable by
imprisonment for a term exceeding one year.” “What constitutes
a conviction [of a crime punishable by imprisonment for a term
exceeding one year] shall be determined in accordance with the
law of the jurisdiction in which the proceedings were held.” 18
U.S.C. § 921(a)(20). In Simmons, this Court held that a
defendant’s prior conviction for which he could not have
received more than a year in prison under North Carolina’s
2
Amicus argues that this Court does not have jurisdiction
because the district court improperly issued the COA pursuant to
28 U.S.C. § 2253(c). We disagree. “[A] conviction for engaging
in conduct that the law does not make criminal is a denial of
due process” for which a COA is appropriate. Buggs v. United
States, 153 F.3d 439, 444 (7th Cir. 1998). This is consistent
with our grants of COAs in cases similar to this. See, e.g.,
United States v. Thomas, 627 F.3d 534, 535 (4th Cir. 2010)
(noting that we “granted a certificate of appealability to
consider the issue of whether Watson [holding that a person does
not use a firearm under 18 U.S.C. § 924(c)(1)(A) when he
receives it in trade for drugs] announced a new rule of law that
applies retroactively to cases on collateral review”). Thus, we
decline to review the COA and proceed on the merits.
8
mandatory Structured Sentencing Act, N.C. Gen. Stat. § 15A-
1340.17, was not “punishable” by more than one year in prison
and is not a felony offense for purposes of federal law. 649
F.3d at 243. Prior to Simmons, the individual defendant’s
actual criminal record at the time he was convicted for a prior
North Carolina offense did not matter; if a hypothetical
defendant charged with the same crime could have received more
than one year in prison under North Carolina law, the crime was
a felony in federal court. See United States v. Harp, 406 F.3d
242 (4th Cir. 2005). After Simmons, an individual is not
prohibited from possessing a firearm unless he could have
received a sentence of more than one year for at least one of
his prior convictions. The parties and Amicus agree that
Simmons announced a new rule affecting § 922(g)(1). However,
Amicus argues that the rule is not retroactively applicable.
A petitioner who collaterally attacks his conviction must
establish that the change applies retroactively. Bousley v.
United States, 523 U.S. 614, 620 (1998). Miller argues that
Simmons should be applied retroactively because the rule
limiting retroactivity announced in Teague v. Lane, 489 U.S. 288(1989), does not apply here. Under Teague, “[u]nless they fall
within an exception to the general rule, new constitutional
rules of criminal procedure will not be applicable to those
9
cases which have become final before the new rules are
announced.” Id. at 310.
Miller makes two arguments as to why Teague does not apply.
First, he contends that Teague applies only to new
constitutional rules and Simmons involved statutory
interpretation. We have already rejected this argument. In
United States v. Martinez, 139 F.3d 412, 417 (4th Cir. 1998), we
squarely held that Teague is applicable to cases of statutory
interpretation. This holding has not been placed in doubt
because the Supreme Court has reaffirmed in Schriro v.
Summerlin, 542 U.S. at 348 (2004), that the retroactivity
analysis applies to “[n]ew substantive rules. . . . This
includes decisions that narrow the scope of a criminal statute
by interpreting its terms, as well as constitutional
determinations that place particular conduct or persons covered
by the statute beyond the State’s power to punish.” Id. at 351-
52 (citation omitted).
Next, Miller argues that a Teague exception applies because
Simmons announced a new substantive rather than procedural rule.
Substantive rules apply retroactively because there is “a
significant risk that a defendant stands convicted of ‘an act
that the law does not make criminal’ or faces a punishment that
the law cannot impose upon him.” Schriro, 542 U.S. 352 (quoting
Bousley, 523 U.S. at 620). A new rule is substantive “if it
10
alters the range of conduct or the class of persons that the law
punishes.” Id. at 353. By contrast, new procedural rules
generally do not apply retroactively, because “[t]hey do not
produce a class of persons convicted of conduct the law does not
make criminal, but merely raise the possibility that someone
convicted with use of the invalidated procedure might have been
acquitted otherwise.” Id. at 352.
The Simmons decision changed the way this Court determines
whether prior convictions for certain lower-level North Carolina
felonies are punishable by more than one year in prison. This
Court applied Carachuri to create a new substantive rule.
Simmons requires the court to look at how much prison time the
defendant was exposed to given his own criminal history at the
time he was sentenced and any aggravating factors that were
actually alleged against him. For defendants convicted of
possessing a firearm by a convicted felon under 18 U.S.C.
§ 922(g)(1), where the predicate conviction(s) supporting their
§ 922(g)(1) convictions were North Carolina felony offenses for
which they could not have received sentences of more than one
year in prison, Simmons also makes clear that those felony
convictions do not qualify as predicate felonies for purposes of
federal law, and those defendants are actually innocent of the
§ 922(g)(1) offense of which they were convicted. The fact that
this Court relied on Carachuri in reaching its decision in
11
Simmons does not mean that Carachuri itself announced a new rule
of substantive criminal law, only that this Court applied
Carachuri in such a way as to announce such a rule. We
implicitly recognized that some extension of logic was
necessary, stating that Carachuri “directly undermine[d]” the
Court’s rationale in Harp, rather than recognizing that
Carachuri directly overruled Harp. Simmons, 649 F.3d at 246.
Simmons, then, narrowed the scope of § 922(g)(1) by establishing
that it does not reach defendants whose prior convictions could
not have resulted in a sentence of more than one year in prison.
Thus, Simmons altered “the class of persons that the law
punishes,” Schriro, 542 U.S. at 353, and announced a substantive
rule that is retroactively applicable.
Comparing the Simmons decision to other decisions that have
announced a substantive rule makes clear that Simmons functioned
as an announcement of a new substantive rule. In Bailey v.
United States, 516 U.S. 137 (1995), for example, the Supreme
Court rejected the previous construction of the use of a
firearm, as defined in 18 U.S.C. § 924(c)(1)—that had been
applied in many circuit courts of appeals, including this Court—
and held that “using” a firearm within the meaning of
§ 924(c)(1) required the “active employment of a firearm,” not
its mere possession. Simmons, 649 F.3d at 143-44. Because the
decision narrowed the scope of “use” to mean “active employment”
12
and not “mere possession,” the Supreme Court recognized in
Bousley that Bailey announced a new substantive rule that was
retroactively applicable to cases on collateral review.
Bousley, 523 U.S. at 620-21. Further, in Watson v. United
States, 552 U.S. 74, 83 (2007), the Court narrowed the scope of
18 U.S.C. § 924(c)(1), holding that a person does not “use” a
firearm in violation of that statute when he receives it in
trade for drugs. In each of these cases, then, the Supreme
Court considered the substantive scope of a criminal statute and
announced a new rule that, in some way, narrowed the scope of
that statute as it had previously been construed.
Contrary to Amicus’s assertion, our decision in Powell does
not control the outcome here. In Powell, this Court determined
that Carachuri announced a procedural rule that was not
retroactively applicable on collateral review. 691 F.3d at 559-
60. Powell filed a motion under 28 U.S.C. § 2255 seeking to
vacate his sentence in light of Carachuri. Id. at 555. To
determine whether the Court had the power to hear the merits of
Powell’s claim it first had to determine whether Powell could
get around the statute-of-limitations problem. Section
2255(f)(3) provides for a one-year limitation that “shall run
from the latest of . . . the date on which the right asserted
was initially recognized by the Supreme Court, if that right has
been . . . made retroactively applicable to cases on collateral
13
review.” Simply put, the Court had to determine whether
Carachuri was retroactive to decide if the motion filed by
Powell was timely. In doing so, the Court went on to reason
that Carachuri did not alter the “range of conduct” nor the
“class of persons” that could be punished. Instead, Carachuri
simply recognized that the recidivist nature of a prior
conviction had to be apparent on the face of the record in order
to trigger enhanced punishment. Id. at 559. Therefore,
Carachuri, in this context, looks only at whether a certain
procedure was followed in obtaining a prior conviction; it does
not narrow the scope of a criminal statute such that it places a
class of persons beyond the State’s power to punish or exposes a
defendant to punishment that the law cannot impose upon him.
However, Powell does not necessarily mean that Simmons did not
announce a substantive rule. Although the Court took note of
the Simmons case, the Court did not consider—and was not asked
to consider—whether Simmons announced a new substantive rule.
Id. at 557. The retroactivity of Simmons was irrelevant to
Powell because Powell’s § 2255 petition could be sustained only
by a retroactive Supreme Court decision.
In fact, Simmons did announce a substantive rule when it
applied Carachuri’s principles and then narrowed the class of
offenders and range of conduct that can be subject to
punishment. This additional application and analysis
14
distinguishes Simmons from Carachuri. In sum, even though
Powell determined that Carachuri is a procedural rule that is
not retroactive, this does not mean that Simmons, in applying
Carachuri, did not announce a substantive rule that is
retroactive.
III.
In conclusion, because Simmons announced a new substantive
rule that is retroactive on collateral review, we vacate
Miller’s conviction and remand with instructions to the district
court to grant his petition.
VACATED AND REMANDED
15
KING, Circuit Judge, concurring:
I write separately to reiterate my view that the Supreme
Court’s decision in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577(2010), is retroactively applicable to cases on collateral
review. See United States v. Powell, 691 F.3d 554, 560-66 (4th
Cir. 2012) (King, J., dissenting in part and concurring in the
judgment in part). I also acknowledge and appreciate that the
panel majority’s contrary ruling in Powell is the law of this
Circuit. Nevertheless, as Judge Floyd so ably explains today,
Powell did not answer the distinct question now before us, that
is, whether this Court’s decision in United States v. Simmons,
649 F.3d 237 (4th Cir. 2011) (en banc), has retroactive
applicability. I unequivocally agree with my fine colleagues
that it does.
16