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United States v. Wheeler

United States Court of Appeals, Fourth Circuit

March 28, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
GERALD ADRIAN WHEELER, a/k/a Bay-Bay, Defendant-Appellant.

          Argued: January 25, 2018

          Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:06-cr-00363-RJC-3; 3:11-cv-00603-RJC)


          Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.

          Eric J. Feigin, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

         ON BRIEF:

          Ross Richardson, Federal Public Defender, Interim, FEDERAL PUBLIC DEFENDER WESTERN DISTRICT OF NORTH CAROLINA, Charlotte, North Carolina, for Appellant.

          Noel J. Francisco, Solicitor General, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Jill Westmoreland Rose, United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

          Before KING, FLOYD, and THACKER, Circuit Judges.

          THACKER, Circuit Judge

         In the district court, Gerald Wheeler ("Appellant") sought to have his habeas corpus petition heard on the merits by means of the "savings clause" per 28 U.S.C. § 2255(e). The savings clause provides that an individual may seek relief from an illegal detention by way of a traditional 28 U.S.C. § 2241 habeas corpus petition, if he or she can demonstrate that a § 2255 motion is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). The district court denied Appellant's savings clause request and dismissed his § 2241 petition.

         But Appellant satisfies the requirements of the savings clause as dictated by our decision in In re Jones, 226 F.3d 328 (4th Cir. 2000), because a retroactive change in the law, occurring after the time for direct appeal and the filing of his first § 2255 motion, rendered his applicable mandatory minimum unduly increased, resulting in a fundamental defect in his sentence. We thus vacate the district court's judgment and remand with instructions that Appellant's § 2241 petition be considered on the merits.



         Conviction, Sentence, and Direct Appeal

         In September 2006, a grand jury in the Western District of North Carolina returned a multi-defendant superseding indictment charging Appellant with conspiracy to possess with intent to distribute at least 50 grams of crack cocaine and 500 grams of powder cocaine, in violation of 21 U.S.C. § 841(b)(1)(B) ("Count One"); possession with intent to distribute at least 5 grams of crack cocaine ("Count Five"); using and carrying a firearm during and in relation to a drug trafficking crime ("Count Six"); and being a felon in possession of a firearm ("Count Seven"). The Government also filed an information pursuant to 21 U.S.C. § 851, seeking an enhanced penalty based on Appellant's 1996 North Carolina conviction for possession of cocaine (the "1996 Conviction").[1] On April 17, 2007, Appellant pled guilty to Counts One, Six, and Seven of the indictment. His plea agreement provided that as to Count One, "Due to . . . the [§ 851 information], Defendant is facing not less than ten years imprisonment up to a maximum of life imprisonment." Plea Agreement, United States v. Wheeler, No. 3:06-cr-363 (W.D. N.C. filed April 3, 2007), ECF No. 66 at 1.

         In March 2008, the district court sentenced Appellant to 120 months of imprisonment, the statutory mandatory minimum, on Count One.[2] In so doing, it determined that the 1996 Conviction was a "felony drug offense, " and as a result, Appellant's enhanced statutory range was 10 years to life in prison. See 21 U.S.C. § 841(b)(1)(B) ("If any person commits . . . a [§ 841(b)(1)(B)] violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment . . . ." (emphasis supplied)); id. § 802(44) (defining "[f]elony drug offense" as "an offense that is punishable by imprisonment for more than one year under any [state] law . . . that prohibits or restricts conduct relating to narcotic drugs"). Without the 1996 Conviction, Appellant's United States Sentencing Guidelines ("Guidelines") range would have been 70-87 months, and his statutory sentencing range would have been 5 to 40 years. The district court noted, "[T]he sentence that is required to be imposed upon you is a harsh sentence. It's a mandatory minimum sentence. I don't have any discretion in that area." J.A. 85-86.[3] We affirmed Appellant's conviction and sentence. See United States v. Wheeler, 329 Fed.Appx. 481 (4th Cir. 2009) (per curiam).


         First § 2255 Motion

         On June 29, 2010, Appellant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He alleged that his counsel was ineffective for, inter alia, failing to argue that the 1996 Conviction did not qualify to enhance his sentence. See J.A. 116-17 ("[C]ounsel in this matter[] allowed an error to proceed uncorrected . . . . The term of [the 1996 Conviction] didn't exceed one year[;] the maximum punishment that he could receive was[] eight months . . . .").

         The district court dismissed the § 2255 motion on March 17, 2011, and denied a certificate of appealability ("COA"), explaining that Appellant's argument was foreclosed by this court's decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005), and this court's panel decision in United States v. Simmons, 635 F.3d 140 (4th Cir. 2011). See J.A. 204. Those decisions held, "[T]o determine whether a conviction is for a crime punishable 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." Harp, 406 F.3d at 246 (second emphasis supplied); see also Simmons, 635 F.3d at 146. Thus, the district court reasoned that although Appellant received a sentence of six to eight months for the 1996 Conviction, "his offense was punishable by imprisonment for more than a year" because it was a Class I felony, which carries a maximum sentence of 15 months. J.A. 204. Thus, "[a]ny challenge [to the 1996 Conviction] made by Petitioner's counsel would have failed." Id.

         Appellant filed a pro se motion to reconsider, again contending that the 1996 Conviction did not qualify as a felony drug offense. And again, the district court denied the motion. Appellant filed a notice of appeal on April 14, 2011, and a motion for COA with this court on August 3, 2011.

         While the motion for COA was pending, this court, sitting en banc, overturned the panel decision in Simmons. See United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc) (hereinafter "Simmons"). We determined that "in deciding whether a sentencing enhancement was appropriate under the Controlled Substances Act, a district court could no longer look to a hypothetical defendant with the worst possible criminal history. Instead, . . . a sentencing court may only consider the maximum possible sentence that the particular defendant could have received." United States v. Kerr, 737 F.3d 33, 37 (4th Cir. 2013) (emphasis in original) (discussing Simmons, 649 F.3d at 246-47 & n.9). Thus, what matters is the potential maximum sentence to which a defendant is exposed, not the highest possible sentence. See Simmons, 649 F.3d at 243 (relying on Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010)). As a result, we vacated Simmons's sentence because the state court "never made the recidivist finding necessary to expose Simmons to a higher sentence, " id., and the Government was "precluded from establishing that a conviction was for a qualifying offense" under the Controlled Substances Act, id. (quoting United States v. Rodriquez, 553 U.S. 377, 389 (2008)).

         Nonetheless, we denied Appellant's motion for COA and dismissed his appeal of his first § 2255 petition because, at that time, Simmons did not apply retroactively on collateral review. See United States v. Wheeler, 487 Fed.Appx. 103 (4th Cir. 2012) (per curiam) (citing United States v. Powell, 691 F.3d 554 (4th Cir. 2012)).


         Second § 2255 Motion/ § 2241 Petition

         In late 2011, Appellant filed a second § 2255 motion pro se, alleging that he was "actually innocent" of the § 851 enhancement based on Simmons, the 1996 Conviction is not a felony drug offense, and Simmons should apply retroactively. J.A. 248-49. Indeed, under Simmons, the maximum punishment to which Appellant was exposed for the 1996 Conviction was eight months, which would render that conviction nonqualifying as a felony drug offense under § 841(b)(1)(B).

         In April of 2013, Appellant, now represented by counsel, filed a request for authorization to file the second § 2255 motion, along with an Alternative Petition, which included a request for relief pursuant to 28 U.S.C. § 2241.[4] See J.A. 295-309 (the "§ 2241 Petition"). He sought review of the § 2241 Petition by way of the § 2255(e) savings clause, contending, "[Section] 2255 has never provided an avenue for [Appellant] to challenge his unlawful sentence. [Section] 2255 relief is -- and always has been --foreclosed for him on the [Simmons] issue presented in this Petition . . . ." Id. at 302.

         Although this court denied Appellant's request for authorization to file the second § 2255 motion, see Order, In re Wheeler, No. 13-220 (4th Cir. filed April 15, 2013), ECF No. 5, we did not address the § 2241 Petition, which remained pending in district court. Four months later, we held that Simmons applies retroactively on collateral review. See Miller v. United States, 735 F.3d 141 (4th Cir. 2013).

         The district court then stayed Appellant's § 2241 Petition pending resolution of our panel decision in United States v. Surratt, No. 14-6851. On July 31, 2015, a divided panel of this court held that a petitioner who received a sentence of life without parole based on a prior conviction rendered nonqualifying after Simmons and Miller could not pass through the savings clause and have his § 2241 petition heard on the merits. See United States v. Surratt, 797 F.3d 240, 269 (4th Cir. 2015), reh'g en banc granted, Dec. 2, 2015. The majority in Surratt distinguished our decision in In re Jones, which granted savings clause relief after setting forth a three part test based on the legality of a prisoner's conviction, but not his sentence. See 226 F.3d 328, 333-34 (4th Cir. 2000).

         Following that decision, the district court lifted the stay of Appellant's case, dismissed the § 2255 motion as second or successive without authorization, and denied the § 2241 Petition because it did not meet the requirements of the savings clause as set forth in Surratt. The court reasoned, "[Appellant] does not challenge the legality of his conviction. . . . Because [his] challenge is confined to the legality of his sentence the § 2241 petition will be denied." J.A. 363 (emphasis supplied).

         After Appellant filed a notice of appeal, this court voted to rehear Surratt en banc, thereby vacating the panel decision, see 4th Cir. Local Rule 35(c) ("Granting of rehearing en banc vacates the previous panel judgment and opinion . . . ."), and held Appellant's appeal in abeyance pending that en banc decision. However, ultimately the en banc court concluded that Surratt's appeal was moot after President Obama commuted his sentence. See United States v. Surratt, 855 F.3d 218, 219 (4th Cir. 2017). Appellant's case was then removed from abeyance. We now address the district court's decision that Appellant did not meet the savings clause requirements de novo, unbound by this court's panel decision in Surratt. See Fontanez v. O'Brien, 807 F.3d 84, 86 (4th Cir. 2015); Local Rule 35(c).


         In his § 2241 Petition, Appellant lodges a claim for relief from an alleged illegal sentence and explains he was entitled to have that claim heard by virtue of the savings clause. Section 2255(e) provides a means for petitioners to apply for a traditional writ of habeas corpus pursuant to § 2241. It states:

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) (emphasis supplied).

         Appellant raises two main arguments as to why he is entitled to a merits determination of the § 2241 Petition. First, he contends the savings clause is not jurisdictional and therefore, because the Government argued in the district court that Appellant satisfied the savings clause, it has waived any such challenge and precluded the courts from ...

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