United States District Court, W.D. North Carolina, Statesville Division
RICHARD L. VOORHEES, District Judge.
THIS MATTER is before the Court on remand from the United States Court of Appeals for the Fourth Circuit.
On January 9, 2013, this Court dismissed Petitioner's motion to vacate, set aside, or correct sentence, filed pursuant to 28 U.S.C. § 2255, after finding that it was untimely under the provisions of § 2255(f), and that relief was precluded by controlling law.
In the underlying criminal case, Petitioner entered into a written plea agreement with the Government and he was later convicted in 2006 on one count of conspiracy to possess with intent to distribute quantities of cocaine and cocaine base, in violation of 21 U.S.C. § 846. Petitioner was sentenced to 151-months' imprisonment. (5:05-CR-00235, Doc. No. 254: Judgment in a Criminal Case). Petitioner did not appeal from this judgment.
On July 12, 2012, Petitioner filed a pro se § 2255 motion arguing that he was entitled to be resentenced because a prior drug conviction, sustained in North Carolina state court, no longer qualified as a felony and therefore was improperly relied upon to support his sentencing enhancement pursuant to 21 U.S.C. § 851. Petitioner relied on the Fourth Circuit's en banc decision in United States v. Simmons , 649 F.3d 237 (4th Cir. 2011), in which the Court held that in order for a prior North Carolina state conviction to serve as a predicate felony under federal law, the individual defendant before the Court must have been subject to a sentence exceeding one year in prison under North Carolina's Structured Sentencing Act. In so holding, the Court expressly overruled United States v. Harp , 406 F.3d 242 (4th Cir. 2005), in which the Court held that in determining "whether a conviction is for a crime by a prison term exceeding one year [under North Carolina law] we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history." Id . (quoting Harp , 406 F.3d at 246).
In Petitioner's case, although his previous state drug conviction would not be considered a felony in the wake of the en banc decision in Simmons, Petitioner's state drug conviction was properly considered a felony under the controlling precedent in Harp which was firmly in place at the time he was sentenced. Accordingly, the state conviction was properly considered when determining whether an § 851 enhancement should apply.
Relying on the provisions of § 2255(f) - which prohibits a § 2255 motion from being filed more than one year from one of the four enumerated events - and the Fourth Circuit's decision in United States v. Powell , 691 F.3d 554, 560-61 (4th Cir. 2012), which interpreted the Supreme Court's decision in Carachuri-Rosendo v. Holder , 530 U.S. 563 (2010), and based on unpublished decisions from the Fourth Circuit, this Court found that the § 2255 motion was untimely and that relief was precluded by relevant case law. See, e.g., United States v. Wheeler, 487 F.Appx. 103 (4th Cir. 2012) (unpublished) (noting "Wheeler's claim for retroactive application of the Supreme Court's opinion in [Carachuri] and our opinion in [Simmons] fails in light our recent opinion in [Powell]); United States v. Walker, 486 F.Appx. 372 (4th Cir. 2012) (unpublished) (noting Powell's holding that Carachuri is not retroactive to cases on collateral review). Based on the foregoing, the Court dismissed Petitioner's § 2255 motion. (5:12-CV-00101, Doc. No. 3). Petitioner filed a pro se notice of appeal to the Fourth Circuit and counsel entered a notice of appearance on his behalf.
On April 4, 2013, the Fourth Circuit entered an order holding the appeal in abeyance pending the outcome of the case of Miller v. United States, No. 13-6115 (4th Cir. filed Jan. 28, 2013), and the Supreme Court's decision in Alleyne, No. 11-9335, which was argued before the Court on January 14, 2013. ( Id., Doc. No. 8). On August 21, 2013, the Fourth Circuit decided Miller and found that the holding in the en banc Simmons decision is retroactive to cases on collateral review. Miller v. United v. United States, 735 F.3d 141 (4th Cir. 2013).
In Miller, the Fourth Circuit considered a claim of actual innocence in a § 2255 proceeding following Miller's conviction for being a felon-in-possession of a firearm, in violation of 18 U.S.C. § 922(g). The grand jury in the Western District indicted Miller for the Section 922(g) offense after finding that he had been convicted of a felony in state court in North Carolina which was punishable by more than one year in prison under federal law. The record before the district court demonstrated that Miller had previous convictions in North Carolina for felony possession of cocaine and the felony offense of threatening a court officer. Petitioner was sentenced to a term of 6 to 8 months' imprisonment for each of those state convictions.
Miller did not appeal his § 922(g) conviction. Rather, some four years later he filed a Section 2255 motion contending that in light of the holding in Simmons he was actually innocent because he did not have valid prior convictions for which he could have been sentenced to more than one year in prison. Consequently, as Miller argued, he had no prior felony which could have supported his § 922(g) conviction. The district court denied collateral relief and Miller appealed.
In its opinion, the Miller Court noted that at the time Miller was sentenced, his prior state convictions were properly classified as felonies under then-existing precedent. Miller, 735 F.3d at 143-44 (citing Harp , 406 F.3d at 246). The Court then explained that the subsequent decision in Simmons had expressly overruled Harp in holding that whether a prior North Carolina conviction exposed a defendant to more than one year prison can only be determined by examining the criminal record of the individual defendant before the Court and not a hypothetical defendant with the worst possible criminal record. Id. at 143. The Court observed that Miller, who had not been convicted of an offense for which he could have been sentenced to in excess of one year, no longer had a predicate state conviction to support his § 922(g) conviction.
The Court next examined whether Miller was entitled to the retroactive application of the Court's en banc decision in Simmons. The Court found that "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." Miller, 735 F.3d at 147. The Court then concluded that the substantive rule announced in Simmons is retroactive to cases on collateral review. Miller's § 922(g) conviction was therefore ...