Gregory Phillips v. United States

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0321p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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GREGORY ALEC PHILLIPS,
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Petitioner-Appellant,
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No. 11-6249
v.
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Respondent-Appellee. -
UNITED STATES OF AMERICA,
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Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
Nos. 3:04-cr-179-1; 3:08-cv-57—Thomas W. Phillips, District Judge.
Argued: June 21, 2013
Decided and Filed: November 4, 2013
Before: ROGERS and KETHLEDGE, Circuit Judges; BORMAN, District Judge*
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COUNSEL
ARGUED: Hallie H. McFadden, Signal Mountain, Tennessee, for Appellant. Debra A.
Breneman, UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for
Appellee. ON BRIEF: Hallie H. McFadden, Signal Mountain, Tennessee, for
Appellant. Debra A. Breneman, Charles E. Atchley, Jr., UNITED STATES
ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.
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OPINION
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BORMAN, District Judge. Gregory Alec Phillips, a former federal prisoner now
on supervised release, was indicted on December 7, 2004, in the United States District
*
The Honorable Paul D. Borman, United States District Judge for the Eastern District of
Michigan, sitting by designation.
1
No. 11-6249 Phillips v. United States Page 2
Court, Eastern District of Tennessee. (R. 3, Sealed Indictment.)1 The one-count
indictment charged that on or about November 2004, Phillips, an adult citizen of the
United States, did travel in foreign commerce to Thailand, and did knowingly engage in
illicit sexual conduct as defined in Title 18, United States Code, Sections 2423(f) and
2246, with a minor male person who had not attained the age of sixteen (16) years, in
violation of 18 U.S.C. § 2423(c). Phillips pleaded guilty to the single count and was
sentenced to 37 months imprisonment, which he has served, and to lifetime supervised
release. Phillips was released from prison on August 16, 2007. Subsequently, Phillips
violated multiple terms of his supervised release and was sentenced to an additional
30 months imprisonment and thereafter to a 20 year term of supervised release. Phillips
was released from his second incarceration in or about September, 2010, and continues
on supervised release.
Phillips now appeals the district court’s order denying his motion to vacate
judgment filed under 28 U.S.C. § 2255. In his motion to vacate in the district court,
Phillips argued that the statute under which he was convicted, 18 U.S.C. § 2423(c),
which punishes “[e]ngaging in illicit sexual conduct in foreign places,” applied only to
individuals who both traveled in foreign commerce and engaged in illicit sexual conduct
after the statute was enacted on April 30, 2003. Phillips also argued that his conviction
violated the Ex Post Facto clause. Declining to address the government’s arguments that
Phillips’s § 2255 motion was time-barred and procedurally defaulted, the district court
addressed the merits and ruled that Phillips’s foreign travel need not have preceded the
date of enactment of section 2423(c), as long as the illicit sexual conduct occurred after
the statute was enacted, which in Phillips’s case it did. The district court denied the
motion to vacate, and denied Phillips a certificate of appealability. Phillips v. United
States, No. 04-cr-179, 2011 WL 4436526 (E.D. Tenn. Sept. 23, 2011). This Court
granted Phillips’s motion for a certificate of appealability, on the issue of whether
18 U.S.C. § 2423(c) requires that both the travel and the illicit sexual conduct occur after
enactment of the statute criminalizing engaging in illicit sexual conduct in foreign
1
Unless otherwise indicated the designation “R._” indicates the Docket Entry Number on the
District Court Docket, Case No. 04-cr-00179 (E.D. Tenn.).
No. 11-6249 Phillips v. United States Page 3
places. After oral argument, this Court requested supplemental briefing addressing
whether the equitable exception for actual innocence to AEDPA’s one-year statute of
limitations applies in this case, in light of the absence of new evidence, and in light of
the Supreme Court’s recent decision in McQuiggin v. Perkins, 133 S. Ct. 1924 (2013).
For reasons not addressed by the district court, but addressed by the parties in the
supplemental briefs, which we find dispositive of Phillips’s claims, we AFFIRM the
decision of the district court denying Phillips’s motion to vacate judgment.
I.
A. The PROTECT Act
Title 18 U.S.C. § 2423(c), which was enacted on April 30, 2003, as part of the
Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act
of 2003 (“the PROTECT Act”), defined as “AN ACT To prevent child abduction and
the sexual exploitation of children, and for other purposes,” provides:
“Illicit sexual conduct” is defined as:
(1) a sexual act (as defined in section 2246) with a person under 18 years
of age that would be in violation of chapter 109A if the sexual act
occurred in the special maritime and territorial jurisdiction of the United
States; or (2) any commercial sex act (as defined in section 1591) with
a person under 18 years of age.
18 U.S.C. § 2423(f). See Pub. L. No. 108-21, 117 Stat. 650 (2003).2
Section 2423(c) originally was proposed as one of a number of amendments to
18 U.S.C. § 2423, as part of the Sex Tourism Prohibition Improvement Act of 2002.
H.R. REP. 107-525 (June 24, 2002), 2002 WL 1376220 (2002). Ultimately, the
amendments proposed as part of the Sex Tourism Prohibition Improvement Act of 2002
became law as part of the PROTECT Act in 2003, replacing the single section (b), which
2
Section 2423(c) thus covers both non-commercial (subsection (f)(1)), and commercial
(subsection (f)(2)), illicit sexual conduct. United States v. Bianchi, 386 F. App’x 156, 162 (3d Cir. 2010),
cert denied, 131 S. Ct. 1044 (2011) (noting that “[t]he Supreme Court’s broad interpretation of the Foreign
Commerce Clause applies with equal force to the non-commercial sexual conduct prong of § 2423(c),” and
finding that Bianchi did not establish that Congress had exceeded its constitutional bounds by enacting the
non-commercial prong).
No. 11-6249 Phillips v. United States Page 4
punished travel in interstate commerce with intent to engage in a sexual act with a minor,
with new subsections (b) through (g). Subsection (b), “Travel With Intent to Engage in
Illicit Sexual Conduct,” remained essentially unchanged and subsections (c) through (g)
were newly added. Subsection (c), “Engaging in Illicit Sexual Conduct in Foreign
Places,” under which Phillips was indicted in this case, has no intent requirement and
punishes one who travels in foreign commerce and engages in illicit sexual conduct with
another person.3
B. Phillips’s Conviction, Supervised Release Violations and Motion to Vacate
In August, 2001, Phillips traveled from the United States to Thailand to begin
employment as a teacher at the American School of Bangkok, in Bangkok, Thailand.4
At the time he decided to travel to Thailand to seek employment as a teacher, Phillips
had just completed 36 months probation following a 1998 conviction in Mecklenburg,
North Carolina, for taking indecent liberties with a child. Because Phillips was
prohibited from seeking employment as teacher in the United States, he decided to move
to Thailand and find work there teaching children. At all times relevant to this action,
Phillips remained a citizen of the United States, although he had obtained the necessary
legal authorization to reside and work in Thailand. Beginning in or about May, 2004 (or
earlier), and continuing through October, 2004, Phillips lived at his residence in
3
On March 7, 2013, 18 U.S.C. § 2423(c) was amended to add, after the word “commerce,” the
following language: “or resides, either temporarily or permanently, in a foreign country.” Section 2423(c)
now reads:
(c) Engaging in illicit sexual conduct in foreign places. Any United States citizen or
alien admitted for permanent residence who travels in foreign commerce or resides,
either temporarily or permanently, in a foreign country, and engages in any illicit sexual
conduct with another person shall be fined under this title or imprisoned not more than
30 years, or both.
Pub. L. 113-9 (enacted March 7, 2013). In response to this Court’s June 3, 2013 letter requesting the
parties to file supplemental briefs on the significance of this amendment to Phillips’s appeal, Phillips
responded that “the amendment has no relevance to the instant appeal” and has “no bearing on this appeal.”
(June 17, 2013 Supplemental Brief of Appellant 1, 2.)
4
The details of Phillips activities while in Bangkok, and the specifics of his various supervised
release violations that resulted in his second incarceration, are set forth in this Court’s prior opinion and
order affirming the sentence imposed by the district court for Phillips’s violation of the terms of his
supervised release. United States v. Phillips, 370 F. App’x 610, 612–16 (6th Cir. 2010).
No. 11-6249 Phillips v. United States Page 5
Bangkok with a Thai national child named Prasert Ketbuakaew, also known as “Ong,”
who was over thirteen but under sixteen years of age during that period of time.5
On or about October 26, 2004, the United States Department of Homeland
Security, Immigration and Customs Enforcement (“ICE”) in Bangkok, Thailand, sought
the assistance of the Royal Thai Police in obtaining a search warrant for Phillips’s
residence on suspicion that Phillips was violating 28 U.S.C. § 2423(c), “Engaging in
Illicit Sexual Contact in Foreign Places.” (R. 46-4 at 4-6, United States Supplemental
Filing to the Response to the Defendants’ Motion to Suppress Thai Search Warrant, Ex.
4, October 26, 2004 Letter from Mark Robinson, Attache for ICE in Bangkok, to Surat
Udomrat, Royal Thai Police Colonel.) The ICE request to Police Colonel Udomrat set
forth, in pertinent part, the following investigative findings:
Through investigation and surveillance from March 2004 to the present,
this office’s Special Agents and Investigators have learned that Mr.
Phillips is allegedly involved in the sexual exploitation and/or
endangerment of children. This information was initially developed
when the American School of Bangkok (ASB) informed that Mr. Phillips
was formerly teaching there until he was released based upon his
suspicious behavior with the school children.
The ASB’s staff reported that Mr. Phillips was particularly interested
with the school’s boys as exhibited by his frequent public displays of
inappropriate physical contact with them on school grounds. . . . After
interviewing some of [the staff at Phillips’s former Bangkok residence],
it was learned that Mr. Phillips regularly brought different “young Thai
boys” to his apartment to spend the night. One of the boys was
nicknamed or identified as “Ong,” the alleged victim. . . . When Mr.
Phillips moved out of [his former residence] it was determined through
multiple surveillances conducted at different times such as mornings,
afternoons, and evenings that Ong was inside [Mr. Phillips’s] residence.
It was learned that he was approximately thirteen years old.
5
According to the PSR, Phillips met Ong’s mother, a hot dog vendor on the streets of Bangkok,
who asked Phillips to care for her son (Ong) after she lost her job. Phillips later hired several members
of Ong’s family, who were unemployed, to work at a martial arts studio that Phillips opened in Bangkok.
Ultimately, Phillips paid for Ong to attend school and Ong began living with Phillips at his residence in
Bangkok.
No. 11-6249 Phillips v. United States Page 6
Rawle 46-4 at 5. Based upon this, and other pertinent information learned through further
investigation and surveillance, the search warrant was granted, the search was conducted
and Ong was removed from the residence and transferred to child protection officers.
Although it is unclear how Mr. Phillips became aware that authorities were
searching for him in Thailand in connection with these charges, according to testimony
of his probation officer in connection with Phillips’s supervised release revocation
hearing on March 28, 2008, Phillips did become aware that he was being sought and did
flee Thailand sometime in October, 2004, to Mexico, where he stayed for approximately
30 days with a former acquaintance, whom Phillips knew as “Dylan Thomas,” a
convicted sex offender whose actual name was John Schillaci, who was then listed on
the FBI’s Top Ten Most Wanted individuals.6 According to the testimony of Phillips’s
probation officer at the revocation hearing, at some point, after residing in Mexico for
a period of approximately 30 days, Phillips voluntarily returned to the United States. On
December 7, 2004, Phillips was indicted on charges of knowingly engaging in illicit
sexual conduct with a minor male, Ong, in violation of 18 U.S.C. § 2423(c).
On May 17, 2005, Phillips entered into a Rule 11 Plea Agreement, in which he
pleaded guilty to the single count with which he was charged, engaging in illicit sexual
conduct in foreign places in violation of 18 U.S.C. § 2423(c). On September 28, 2005,
the district court sentenced Phillips to 37 months’ imprisonment and a life term of
supervised release. Phillips did not appeal his sentence and remained in federal custody
at the Federal Correctional Institution, Jessup, Georgia until his release on August 15,
2007.
6
According to Phillips’s probation officer, Phillips was aware that the individual he knew as
Dylan Thomas, whom he had met on the Internet through the BoyChat/BoyLover message board, and with
whom he sought refuge when he fled Thailand, was engaging in sex with underage boys. Phillips claims
that he was, however, unaware of Thomas’s status as a fugitive convicted sex offender until Phillips
returned to the United States from Mexico, was convicted of the underlying offense in this case and
completed his term of incarceration. Then, in December, 2007, shortly after he was released from prison
after serving his original 36 month sentence in this case, while serving his sentence of lifetime supervised
release, Mr. Phillips learned that the individual whom he knew as Dylan Thomas was a fugitive convicted
sex offender and attempted to broker a deal with FBI to disclose Mr. Thomas’s (Schillaci’s) whereabouts
in exchange for a release from his supervised release. This Court’s prior opinion and order, affirming the
sentence imposed by the district court for Phillips’s violation of the terms of his supervised release,
contains a very detailed discussion of the specifics of Mr. Phillips’s supervised release violations.
See 370 F. App’x at 613–16.
No. 11-6249 Phillips v. United States Page 7
On February 20, 2008, Phillips’s probation officer petitioned the district court
for a warrant for Phillips arrest for multiple violations of his supervised release. The
warrant was issued that same day and executed on February 26, 2008. Phillips waived
his right to a preliminary hearing and detention hearing and was ordered detained
without bail pending his revocation hearing before the district court. The district court
held the revocation hearing on March 28, 2008 and found Phillips to be in violation of
both his standard and special conditions of supervised release. The district court
sentenced Phillips to an additional 30 months incarceration followed by 20 years of
supervised release with additional special conditions. Phillips appealed his sentence to
this Court and, on March 22, 2010, this Court affirmed the district court’s finding that
Phillips violated the terms of his supervised release and affirmed in all respects the
sentence imposed by the district court upon revocation of his supervised release. United
States v. Phillips, 370 F. App’x 610 (6th Cir. 2010). Phillips completed his second
incarceration in September, 2010, and continues to serve his 20-year term of supervised
release.
Just days before his February 26, 2008, arrest for violation of the terms of his
supervised release, Phillips had filed in the district court a Motion to Vacate Judgment
Under 28 U.S.C. § 2255, seeking to vacate his original conviction entered by the district
court on September 28, 2005. Recognizing that his motion was filed nearly two and a
half years beyond the applicable one-year statute of limitations, Phillips argued that he
was entitled to relief under 28 U.S.C. § 2255(f) because the earliest date on which he
could have discovered the grounds for his motion was March 29, 2007, the date on
which the United States Court of Appeals for the Ninth Circuit decided United States v.
Jackson, 480 F.3d 1014 (9th Cir. 2007), which Phillips argues establishes that the
“travel” in foreign commerce required under § 2423(c) must have occurred after the
statute was enacted on April 30, 2003. Phillips argued in his motion to vacate that
“[c]learly the interpretation of 18 U.S.C. § 2423 changed effective March 29, 2007.”
(R. 72, Memorandum in Support of Mot. to Vacate at 2, PgID# 8.) Although it is
undisputed that the illicit sexual conduct with the minor male Ong, to which Phillips
pleaded guilty, occurred after the enactment of section 2423(c), Phillips argued that his
No. 11-6249 Phillips v. United States Page 8
“travel” ended in August, 2001, when he began residing in Thailand and teaching at the
American School in Bangkok. Therefore, Phillips argued, because his travel occurred
before 2423(c) was enacted, this change in the law rendered him actually innocent or
rendered his actions not a violation of law. Phillips also argued that application of
2423(c) to him violated the Ex Post Facto Clause.
The Government filed a motion to dismiss Phillips’s § 2255 motion as untimely
because it was not filed within one year of his conviction and did not meet any of the
criteria for avoiding the one-year limitation period found in § 2255(f). Jackson, the
government argued, was not a change in the substantive law by the United States
Supreme Court interpreting § 2423(c) and the Sixth Circuit had issued no precedential
opinion on the issue. The district court did not rule immediately on these motions.
On June 10, 2010, while still serving his 30 month prison term for violation of
his supervised release, Phillips filed a Supplemental Memorandum of Law in Support
of his 2008 Motion to Vacate, which had not yet been ruled upon by the district court.
The Supplemental Memorandum brought to the district court’s attention, as additional
evidence of a purported change in the law indicating Phillips’s actual innocence, the
United States Supreme Court’s opinion in Carr v. United States, 130 S. Ct. 2229 (2010).
In Carr, the Supreme Court held that the provisions of the Sex Offender Registration and
Notification Act (“SORNA”), 18 U.S.C. § 2250, that imposed criminal sanctions on
convicted sex offenders for failing to register when they travel in interstate commerce,
did not apply to sex offenders whose interstate travel occurred before SORNA’s
effective date.
Although the issue of the timeliness of Phillips’s motion was extensively briefed
in the district court, that court declined to address the issue in its ruling on Phillips’s
motion to vacate and instead rested its decision on statutory interpretation grounds. After
hearing oral argument, this Court sought supplemental briefing on the issue of the
timeliness of Phillips’s motion. We now find the timeliness issue dispositive of
Phillips’s claims in this case. We therefore AFFIRM the district court on this alternate
No. 11-6249 Phillips v. United States Page 9
basis and do not reach the merits of Phillips’s argument challenging the district court’s
interpretation of the term “travels” as used in § 2423(c).
II.
When reviewing the denial of a motion under 28 U.S.C. § 2255, we review legal
issues de novo and uphold factual findings unless they are clearly erroneous. Adams v.
United States, 622 F.3d 608, 610–11 (6th Cir. 2010). Specifically, “[t]his Court reviews
a district court’s decision on the issue of equitable tolling de novo where the facts are
undisputed.” Solomon v. United States, 467 F.3d 928, 932 (6th Cir. 2006).
III.
The statute of limitations governing the filing of a § 2255 motion is set forth in
28 U.S.C. § 2255(f) and provides:
A 1-year period of limitation shall apply to a motion under this section.
The limitation period shall run from the latest of -
(1) the date on which the judgment of conviction becomes final;
(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 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 reasonable diligence.
28 U.S.C. § 2255(f).
Phillips first suggests that his petition is timely under § 2255(f)(4) because a
“new fact” was discovered when the Ninth Circuit decided Jackson and “clarified the
scope of § 2423(c)’s travel prong.” (Pet’r’s Supp. Br. 4.) Phillips concludes that
because he filed his petition within one year of the Jackson decision, his petition is
timely. Id. But as Phillips also recognizes, § 2255(f)(4) is directed at the discovery of
No. 11-6249 Phillips v. United States Page 10
new facts, not newly-discovered law, and his is not such a case. The heart of Phillips’s
argument is not that his petition should be considered timely but that an equitable
exception should be applied to “bypass the statutory bar erected by the AEDPA,”
because an intervening change in the law has rendered him actually innocent. (Pet’r’s
Supp. Br. 5–6.)
In McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), the Supreme Court recently
discussed the actual innocence exception in the context of state petitioner’s untimely
filing under 28 U.S.C. § 2244, describing the actual innocence exception as a
“‘fundamental miscarriage of justice exception, [] grounded in the ‘equitable discretion’
of habeas courts to see that federal constitutional errors do not result in the incarceration
of innocent persons.’” 133 S. Ct. at 1931 (quoting Herrera v. Collins, 506 U.S. 390, 404
(1993)). Although the Court in McQuiggin addressed an evidentiary “factual” actual
innocence claim, i.e. the petitioner claimed that newly discovered facts established his
innocence, the Court drew upon its reasoning in several decisions, including Bousley v.
United States, 523 U.S. 614 (1998), which recognized a fundamental miscarriage of
justice exception in the procedural default context:
The miscarriage of justice exception, our decisions bear out, survived
AEDPA’s passage. In Calderon v. Thompson, 523 U.S. 538, 118 S. Ct.
1489, 140 L. Ed. 2d 728 (1998), we applied the exception to hold that a
federal court may, consistent with AEDPA, recall its mandate in order to
revisit the merits of a decision. Id., at 558, 118 S. Ct. 1489 (“The
miscarriage of justice standard is altogether consistent . . . with AEDPA's
central concern that the merits of concluded criminal proceedings not be
revisited in the absence of a strong showing of actual innocence.”). In
Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 140 L. Ed. 2d
828 (1998), we held, in the context of § 2255, that actual innocence may
overcome a prisoner’s failure to raise a constitutional objection on direct
review. Most recently, in House [v. Bell, 547 U.S. 518 (2006)], we
reiterated that a prisoner’s proof of actual innocence may provide a
gateway for federal habeas review of a procedurally defaulted claim of
constitutional error. 547 U.S., at 537–538, 126 S. Ct. 2064.
These decisions “see[k] to balance the societal interests in finality,
comity, and conservation of scarce judicial resources with the individual
interest in justice that arises in the extraordinary case.” Schlup [v. Delo],
513 U.S. [298 (1995)], at 324, 115 S. Ct. 851. Sensitivity to the injustice
No. 11-6249 Phillips v. United States Page 11
of incarcerating an innocent individual should not abate when the
impediment is AEDPA’s statute of limitations.
133 S. Ct. at 1932 (alterations to text in original).7
Bousley thus properly informs the analysis of an actual innocence claim in the
statute of limitations context. See also Souter v. Jones, 395 F.3d 577, 590, 590 n.5
(6th Cir. 2005) (finding a credible claim of actual innocence based upon newly
discovered evidence sufficient to equitably toll the one year statute limitations set forth
in § 2244(d)(1), noting the teachings of Bousley and observing that “the interests that
must be balanced in creating an exception to the statute of limitations are identical to
those implicated in the procedural default context . . .”) (internal quotation marks and
citation omitted). Bousley established an analytical framework for addressing actual
innocence claims based upon a claim of legal innocence occasioned by an intervening
change in law.8 See, e.g. Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012) (“The
Sixth Circuit has derived its understanding of the definition of ‘actual innocence’ from
Bousley [].”) In Wooten, examining a Bousley actual innocence claim in the context of
a challenge under 28 U.S.C. § 2241, via § 2255’s savings clause, this Court observed:9
7
Whether an actual innocence claim is more appropriately construed as seeking equitable tolling
or an equitable exception to the statutory bar was discussed in McQuiggin:
Perkins, however, asserts not an excuse for filing after the statute of limitations has run.
Instead, he maintains that a plea of actual innocence can overcome AEDPA's one-year
statute of limitations. He thus seeks an equitable exception to § 2244(d)(1), not an
extension of the time statutorily prescribed.
133 S. Ct. at 1931 (emphasis in original) (citing Rivas v. Fischer, 687 F.3d 514, 547 n.42 (2d Cir. 2012)
(which noted that some courts have framed the actual innocence question as whether the AEDPA allows
for “equitable tolling” but finding it more accurate to describe the issue as whether an “equitable
exception” exists because the due diligence requirement for equitable tolling is “incompatible with a
workable actual innocence exception”)).
8
The Court declines to accept the government’s suggestion that in McQuiggin, the Court meant
to limit actual innocence claims to those instances where a petitioner presents new facts, i.e. newly
discovered evidence of innocence, and by implication to undermine those cases that have applied an
equitable exception in cases where the innocence is occasioned not by new evidence but by an intervening,
controlling change in the law as applied to a static set of facts. As discussed infra, numerous cases
recognize an actual innocence or fundamental miscarriage of justice exception when applied in the context
of a claim of legal or statutory actual innocence, albeit through varied analytical approaches.
9
In Wooten, this Court recognized that a federal prisoner unable to challenge the legality of his
detention under § 2255 “may also challenge the legality of his detention under § 2241 if he falls within the
‘savings clause’ of § 2255 . . . .” 677 F.3d at 306–07. Section 2255’s savings clause states:
No. 11-6249 Phillips v. United States Page 12
Bousley held that “[t]o establish actual innocence, petitioner must
demonstrate that, in light of all the evidence, it is more likely than not
that no reasonable juror would have convicted him ... [and] that ‘actual
innocence’ means factual innocence, not mere legal insufficiency.”
523 U.S. at 623–24, 118 S. Ct. 1604 (internal quotation marks and
citations omitted). One way to establish factual innocence is to show an
“intervening change in the law that establishes [the petitioner's] actual
innocence.” [United States v.] Peterman, 249 F.3d [458 (6th Cir. 2001)]
at 462. This may be achieved by demonstrating (1) the existence of a new
interpretation of statutory law, (2) which was issued after the petitioner
had a meaningful time to incorporate the new interpretation into his
direct appeals or subsequent motions, (3) is retroactive, and (4) applies
to the merits of the petition to make it more likely than not that no
reasonable juror would have convicted him.
677 F.3d at 307–08 (alterations to text in original). Phillips’s claim fails at the first
prong of this analysis. Neither this Circuit nor the Supreme Court has issued any “new
decisions interpreting [§ 2423(c)] that substantively define” the criminal offense
contained in that section. Id. at 308 (quoting Garland v. Roy, 615 F.3d 391, 396 (5th
Cir. 2010)).
Phillips begins his actual innocence argument with the premise that his conduct
was not criminal under § 2423(c) because his travel occurred pre-enactment. But
Phillips never addresses the threshold question, dispositive here, of what Supreme Court
or Sixth Circuit precedent defines the temporal scope of § 2423(c) in such a way that he
now stands convicted of a crime that the law does not deem criminal. Such a showing
is the gravamen of an actual innocence claim. See Waucaush v. United States, 380 F.3d
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to
apply for relief by motion pursuant to this section, shall not be entertained if it appears
that the applicant has failed to apply for relief, by motion, to the court which sentenced
him, or that such court has denied him relief, unless it also appears that the remedy by
motion is inadequate or ineffective to test the legality of his detention.
28 U.S.C. § 2255(e). See also Martin v. Perez, 319 F.3d 799, 803–04 (6th Cir. 2003) (recognizing that
§ 2255 “was not intended to supplant” § 2241 and permitting petitioner to assert a Bousley actual
innocence claim under the savings clause of § 2255); United States v. Peterman, 249 F.3d 458, 461–62
(6th Cir. 2001) (recognizing that a petitioner may utilize § 2241 “via § 2255’s savings clause,” to assert
a claim of actual innocence based upon intervening Supreme Court precedent that establishes that he was
actually innocent). Whether analyzed as an equitable exception to an untimely or procedurally defaulted
§ 2255 claim or as a § 2241 claim via § 2255’s savings clause, the actual innocence exception asks the
same fundamental question: does the petitioner stand convicted of conduct that the law does not make
criminal, either because of credible evidentiary proof that he did not commit the crime or because the law
has rendered his conduct not criminal.
No. 11-6249 Phillips v. United States Page 13
251, 254 (6th Cir. 2004) (recognizing that Bousley established that procedural default
can be excused and a guilty plea challenged under “subsequent decisions of [the
Supreme Court] holding that a substantive federal criminal statute does not reach certain
conduct”) (alteration in original) (internal quotation marks and citation omitted); Davis
v. United States, 417 U.S. 333 (1974) (holding that a change in the law of the circuit of
conviction, interpreting Supreme Court precedent, that occurs post trial and appeal, can
be asserted in a § 2255 proceeding to argue that the conduct of conviction was not a
violation of the law when committed and should be set aside); Logan v. United States,
434 F.3d 503, 508 (6th Cir. 2006) (noting that “[p]etitioners bringing motions under
§ 2255 can rely on the [Supreme] Court’s decisions grounded in statutory law”)
(alterations added).
Neither Jackson nor Carr represents an intervening change in the law that
establishes in this Court that Phillips was actually innocent of engaging in illicit sexual
conduct in a foreign place in violation of § 2423(c). In Jackson, the Ninth Circuit
concluded that the plain language of § 2423(c), in particular the use of the present tense
in the verbs “travels” and “engages,” suggested that Congress specified the temporal
reach of the statute and that § 2423(c) only applied if both the travel and the illicit sex
act took place after the enactment of the PROTECT Act. 480 F.3d at 1018. While
Jackson interprets the substantive elements of § 2423(c), it is not precedent in this Court.
See Peveler v. United States, 269 F.3d 693, 699 (6th Cir. 2001) (“We, of course, are not
bound by a decision from another circuit.”). Were Phillips making his actual innocence
argument in the Ninth Circuit, he might have some basis for arguing an intervening
change in the law. He is not.
In Carr, the Supreme Court defined the substantive elements of a different
criminal statute that also utilizes the term “travels.” Phillips argues that the Supreme
Court’s decision in Carr, interpreting the term “travels” as used in § 2250(a) of SORNA,
18 U.S.C. § 2250(a), to be prospective only, established new law mandating a similar
interpretation of the word “travels” in § 2423(c). Central to the Court’s interpretation
of the term “travels” in Carr, was the fact that both Carr and the government agreed
No. 11-6249 Phillips v. United States Page 14
“that the elements of § 2250 should be read sequentially.” 130 S. Ct. at 2235. The
determination that SORNA required that the statutory elements must be “satisfied in
sequence” led inescapably to the conclusion that a person first be “required to register
under SORNA,” before traveling in interstate commerce and failing to register, in order
for criminal liability to attach under the statute: “Once a person becomes subject to
SORNA’s registration requirements, which can occur only after the statute’s effective
date, that person can be convicted under § 2250 if he thereafter travels and then fails to
register.” Id. at 2236. Because a person could only be “required to register” under
SORNA after the statute was enacted, the Court held, the interstate travel must also
occur post-enactment. Id. The Court noted that the context of § 2250(a) did not suggest
that Congress intended to achieve, in that particular section of SORNA, a broader sweep,
i.e. one that attempted to capture pre-enactment travel. Id. at 2238. Additionally, the
Court in Carr noted that the legislative history relied upon by the government to support
its broader reading of § 2250(a) in fact related to the goals of SORNA as a whole, not
those specific to § 2250. In fact, the Court noted, the legislative history contained
specific comments that § 2250 was not intended to reach “pre-enactment interstate
travel,” despite the statute’s broader underlying goals. Id. at 2241–42.
We recognize that Justice Sotomayor, the author of Carr, in dicta in a footnote,
refers to the Ninth Circuit’s opinion in Jackson as an example of a similar “sensible”
reading of the statutory term “travels:”
Examining a criminal law with a travel element similar to the one at issue
here, the Ninth Circuit itself recently agreed that “the present tense verb
‘travels,’ most sensibly read, does not refer to travel that occurred in the
past – that is, before the enactment of the statute.” United States v.
Jackson, 480 F.3d 1014, 1019 (C.A. 9 2007) (interpreting 18 U.S.C.
§ 2423(c), which imposes criminal penalties on “[a]ny United States
citizen . . . who travels in foreign commerce, and engages in illicit sexual
conduct with another person.”)
130 S. Ct. at 2236 n.5 (alteration in original). However, beyond pointing out that both
§ 2250(a) and § 2423(c) are criminal statutes and both use the term “travels,” Justice
Sotomayor offers no analysis of the “similarities,” engages in no further discussion of
No. 11-6249 Phillips v. United States Page 15
the Ninth Circuit’s reasoning in Jackson, and undertakes no analysis of the structure or
design of § 2423(c) that might distinguish it (or not) from § 2250(a). Thus, Carr is not
precedent defining the substantive criminal elements of § 2423(c). SORNA and the
PROTECT Act are different statutes and this Court cannot presume that the Supreme
Court in Carr, by way of citation to Jackson in a footnote, meant also to define the
substantive criminal elements of § 2423(c), a different statute, adopted in a different
context and for a different purpose.10 Had Jackson been a decision of this Circuit, or
had Carr interpreted § 2423(c) of the PROTECT Act instead of § 2250(a) of SORNA,
Phillips may have at least a colorable claim that he satisfies the first prong of his actual
innocence argument. See, e.g., Davis, 417 U.S. at 346–47 (holding that a change in the
law of the circuit of conviction, interpreting Supreme Court precedent, that occurs post
trial and appeal, can be asserted in a § 2255 proceeding to argue that the conduct of
conviction was not a violation of the law when committed and should be vacated);
Waucaush, 380 F.3d at 254 (finding an intervening change in the law sufficient to
support an actual innocence claim where two Supreme Court decisions issued after
petitioner’s plea “broke new ground” by redefining the scope of Congress’s power under
the commerce clause and placing out of reach the very category of conduct to which
petitioner pleaded guilty under, compelling a conclusion that petitioner had pleaded
guilty under RICO to conduct which was not a crime); Buffin v. United States, No. 10-
2167, 2013 WL 331565, at *3 (6th Cir. Jan. 30, 2013) (finding the first prong of the
actual innocence inquiry satisfied where this Court had already held that a Supreme
Court decision interpreting the very statute under review constituted “a new
interpretation of statutory law”).
Jackson is a Ninth Circuit case, and Carr interprets SORNA, not the PROTECT
Act. While both may be authority for arguing in a different context that the word
10
In this regard we must distinguish Logan v. United States, 434 F.3d 503, 508 (6th Cir. 2006),
where we concluded that unique similarities between the federal carjacking and arson statutes, along with
the government’s concession in that case that the two statutes would be similarly interpreted, led us to
permit the petitioner to rely on the Supreme Court’s interpretation of the carjacking statute in asserting his
actual innocence claim under the arson statute. Such is not the case here, and the government makes no
such concession, vigorously disputing the claim of similarities between § 2250(a) of SORNA and
§ 2423(c) of the PROTECT Act, and strongly contesting the precedential value of Carr in the context of
this case.
No. 11-6249 Phillips v. United States Page 16
“travels” should be similarly interpreted in both SORNA and the PROTECT Act, neither
represents an intervening change in the law that could serve as a basis for an equitable
exception argument in this Court that Phillips “stands convicted ‘of an act that the law
does not make criminal.’” Logan, 434 F.3d at 509 (quoting Bousley, 523 U.S. at 620).
Surely the actual innocence exception, so narrowly construed that it has historically been
applied with great caution and only in the case of a fundamental miscarriage of justice,
cannot be so broadly defined as to be premised upon changes in statutory interpretation
that may be appealing in argument, but are certainly not binding. Phillips has failed to
identify a binding holding of the Supreme Court or Sixth Circuit interpreting the
substantive element of “travels” in § 2423(c), a necessary component of his entitlement
to seek an actual innocence equitable exception to his untimely petition.
IV.
Accordingly, we AFFIRM the decision of the district court denying Phillips’s
motion to vacate judgment.