United States District Court, E.D. North Carolina, Western Division
JAMES C. DEVER, III, District Judge.
The court is concerned about its jurisdiction to resentence Tony Taylor ("Taylor") and about whether such resentencing under 28 U.S.C. § 2241 would comport with governing precedent. As explained below, the court orders further briefing. The resentencing scheduled for March 2014 is postponed.
On November 1, 2006, a federal grand jury indicted Taylor for conspiring to distribute and possess with intent to distribute 50 grams or more of cocaine base (crack) in violation of 21 U.S.C. § 846 (count one), for six counts of distributing and possessing with intent to distribute more than 5 grams of cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1) (counts two through seven), and for distributing and possessing with intent to distribute more than 50 grams of cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1) (count eight) [D.E. 3]. Because Taylor had been convicted of two prior drug offenses that were felonies under the law at the time, and because the government filed a notice of intent to seek enhanced penalties based on those prior convictions, Taylor was subject to a mandatory life sentence on counts one and eight. See 21 U.S.C. § 841(b)(1)(A) (2007); id. § 851; Notice of Intent to Seek Enhanced Penalty [D.E. 37]. Had Taylor not been subject to that enhancement, a life sentence would still have been authorized by statute for counts one and eight, but would not have been mandatory. See 21 U.S.C. § 841(b)(1)(A) (2007).
On March 12, 2007, a jury convicted Taylor on all counts except count two [D.E. 44]. On December 4, 2007, the court sentenced Taylor to life imprisonment on counts one and eight, as required by statute, and to 360 months' imprisonment on counts three through seven, to be served concurrently [D.E. 63]. On December 19, 2007, Taylor timely appealed [D.E. 64]. On November 24, 2008, the Fourth Circuit affirmed Taylor's conviction and sentence. See United States v. Taylor , 301 F.Appx. 248 (4th Cir. 2008) (per curiam) (unpublished).
In affirming Taylor's conviction and sentence, the Fourth Circuit rejected Taylor's argument that the difference between the statutory mandatory minimum penalties for crack cocaine and powder cocaine offenses violates the Equal Protection Clause and rejected his argument that his life sentence on counts one and eight violates the Eighth Amendment. See id. at 250. The Fourth Circuit also rejected Taylor's argument that he lacked the two prior felony drug convictions needed to qualify him for a mandatory life sentence on counts one and eight because the sentencing range for his 1996 North Carolina drug conviction was 8-10 months. Id . In rejecting that argument, the Fourth Circuit relied on then-binding precedent United States v. Harp , 406 F.3d 242, 246 (4th Cir. 2005), overruled, United States v. Simmons , 649 F.3d 237, 244-50 (4th Cir. 2011) (en banc). Taylor did not seek a writ of certiorari, and his conviction became final no later than February 23, 2009. See Fed. R. App. P. 4(b)(l); Clay v. United States , 537 U.S. 522, 527-28 (2003); [D.E. 86] 2-3.
On May 3, 2010, Taylor moved for an extension of time to file a motion under 28 U.S.C. § 2255 due to a 51-day institutional lockdown [D.E. 78]. On September 28, 2010, Taylor moved to vacate his sentence pursuant to 28 U.S.C. § 2255 [D.E. 80]. In his section 2255 motion, Taylor argued that his right to a speedy trial was violated and that his trial and appellate counsel were ineffective for failing to make a speedy trial argument. See id. 5; see also [D.E. 81]. On October 15, 2010, the government filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted and argued that the motion was untimely and that equitable tolling did not apply. See [D.E. 83]. On November 1, 2010, Taylor responded to the motion to dismiss. See [D.E. 85].
On October 5, 2011, this court denied Taylor's motion for an extension of time and granted the government's motion to dismiss. See [D.E. 86]. In doing so, the court noted that Taylor did not file his motion to vacate until September 28, 2010, 218 days after the one-year limitation period in 28 U.S.C. § 2255(f) had expired, and that equitable tolling did not apply. See id. 2-5. The court also denied a certificate of appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell , 537 U.S. 322, 336-38 (2003); Slack v. McDaniel , 529 U.S. 473, 483-84 (2000); Rose v. Lee , 252 F.3d 676, 684 (4th Cir. 2001).
Taylor appealed the court's dismissal of his first section 2255 motion. On February 28, 2012, the Fourth Circuit declined to issue a certificate of appealability and dismissed the appeal. See United States v. Taylor, 468 F.Appx. 306 (4th Cir. 2012) (per curiam) (unpublished).
On August 20, 2012, Taylor filed a second motion under section 2255 [D.E. 4]. In that motion, he argued that he should retroactively receive the benefit of Simmons , 649 F.3d at 244-50. See id. Under Simmons, one of Taylor's prior drug convictions would no longer be considered a felony, and his criminal record would no longer support a mandatory life sentence on counts one and eight under 21 U.S.C. §§ 841(b)(l)(A) and 851.
On April 2, 2013, the government moved to hold Taylor's section 2255 petition in abeyance pending the Supreme Court's decision in United States v. Alleyne , 457 F.Appx. 348 (4th Cir. 2011) (per curiam) (unpublished), rev'd, 133 S.Ct. 2151 (2013) [D.E. 102]. On September 26, 2013, the court denied that motion as moot in light of the Supreme Court's intervening decision in Alleyne, and directed the parties to state their position as to Alleyne and Simmons. See [D.E. 103].
On November 18, 2013, the government responded that Alleyne did not apply retroactively to Taylor's case and that this court lacked jurisdiction to consider Taylor's second motion under 28 U.S.C. § 2255 because Taylor had not received the required authorization from the Fourth Circuit to file a second motion under section 2255. [D.E. 106] 2-9; see 28 U.S.C. §§ 2244, 2255(h); Felker v. Turpin , 518 U.S. 651, 657 (1996); Farrow v. Revel, No. 13-6804 , 2013 WL 5546155, at *1 (4th Cir. Oct. 9, 2013) (per curiam) (unpublished); United States v. MacDonald , 641 F.3d 596, 603-04 (4th Cir. 2011); United States v. Winestock , 340 F.3d 200, 205 (4th Cir. 2003); see also In re Rains , 659 F.3d 1274, 1275 (10th Cir. 2011) (per curiam) (collecting cases from the Second, Fifth, Seventh, and Ninth Circuits holding that when a motion under 28 U.S.C. §§ 2254 or 2255 is dismissed as untimely, a subsequent motion is second or successive). The government declined to take a position on whether it would consent to treating Taylor's second 2255 motion as a petition under 28 U.S.C. § 2241 or on whether it would assent to relief if Taylor's motion were treated as a section 2241 petition, given that, when a defendant is legally innocent of the offense of conviction under Simmons, Simmons applies retroactively on collateral review. See [D.E. 106] 9; Miller v. United States , 735 F.3d 141, 144-47 (4th Cir. 2013) (holding that, if a defendant convicted of being a felon in possession of a firearm no longer has a predicate felony after Simmons, he is legally innocent and Simmons applies retroactively in a proceeding under 28 U.S. C.§ 2255 to permit a court to vacate the conviction); see also Snead v. United States, No. 3:12-cv-125-GCM, 2013 WL 6850115, at *1-3 (W.D. N.C. Dec. 30, 2013) (unpublished); Henderson v. United States, No. 5:11cv147-RLV, 2013 WL 6709729, at *2 (W.D. N.C. Dec. 18, 2013)(unpublished); Lattimore v. United States, No. 5:12-cv-128-RLV, 2013 WL 6246378, at *2-4 (W.D. N.C. Dec. 3, 2013) (unpublished); cf. United States v. Powell , 691 F.3d 554, 557-60 (4th Cir. 2012).
On December 9, 2013, the court notified the parties that it would treat Taylor's motion as one seeking relief under 28 U.S.C. § 2241, held that Alleyne did not apply retroactively, and directed the government to state its position on Taylor's request for relief under section 2241 and Simmons. See [D.E. 107].
On December 18, 2013, the government responded. See [D.E. 108]. The government stated that, "[g]iven the facts of this particular case, " it believed Taylor could pursue his Simmons ...