Gordon Miller v. US

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:12-cv-00701-RJC,3:07-cr-00059-RJC-1. [999177095]. [13-6254]

Appeal: 13-6254

Doc: 57

Filed: 08/21/2013

Pg: 1 of 16

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-00059RJC-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,

Appeal: 13-6254

Doc: 57

Filed: 08/21/2013

Pg: 2 of 16

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

Appeal: 13-6254

Doc: 57

Filed: 08/21/2013

Pg: 3 of 16

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.
previously

been

At the time of Miller’s trial, he had

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

Appeal: 13-6254

Doc: 57

Filed: 08/21/2013

Pg: 4 of 16

for threatening a court officer, for which he was also sentenced
to six to eight months in prison.
Structured

Sentencing

Act,

the

Pursuant to North Carolina’s
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

under

the

time

of

trial,

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.
However,

four

Miller chose not to appeal this ruling.
years

later,

in

2012,

Miller

U.S.C. § 2255 motion to vacate his conviction.

filed

a

28

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.
with

Miller’s

limitations, 1

position
which

and,

would

after

normally

The government agreed

waiving
bar

the

Miller’s

statute

of

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

Appeal: 13-6254

Doc: 57

untimely,

asked

Filed: 08/21/2013

the

Pg: 5 of 16

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

Appeal: 13-6254

Doc: 57

Filed: 08/21/2013

Pg: 6 of 16

After Carachuri, the Supreme Court asked us to reconsider
our initial panel decision in Simmons, in which we held that
Simmons’s

prior

possibility

of

imprisonment

state

for

enhancement.

conviction

imprisonment
more

than

for

was
one

an

year

649 F.3d at 240-41.

which

offense
that

he

faced

no

punishable

by

allowed

a

sentence

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

history.’”

a

defendant

with

the

worst

possible

criminal

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.
held

that

a

prior

conviction

under

North

The Court

Carolina

law

is

punishable by more than one year of imprisonment only if the
defendant’s

conviction,

characteristics
sentence.

and

based

criminal

Id. at 244.

on

his

history,

individual
allowed

for

offense
such

a

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

Powell, 691 F.3d 554, 556 (2012).

6

record.”

United

States

v.

Appeal: 13-6254

Doc: 57

Filed: 08/21/2013

Pg: 7 of 16

After Simmons, this Court then decided Powell.
the

In Powell,

defendant

seeking

brought

a

28

U.S.C.

§

2255

motion

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

applicable on collateral review.
to relief.

is

not

retroactively

Thus, Miller was not entitled

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

Appeal: 13-6254

Doc: 57

Filed: 08/21/2013

Pg: 8 of 16

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.”
U.S.C.

§

921(a)(20).

defendant’s
received

prior

more

than

In

Simmons,

conviction
a

year

for

in

this

which

prison

2

Court

held

he

could

under

North

18

that

not

a

have

Carolina’s

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

Appeal: 13-6254

Doc: 57

mandatory

Filed: 08/21/2013

Structured

Pg: 9 of 16

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.
F.3d

at

243.

Prior

to

Simmons,

the

individual

649

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.
242

(4th

Cir.

prohibited

from

2005).

See United States v. Harp, 406 F.3d

After

possessing

a

Simmons,
firearm

an

individual

unless

he

is

could

not
have

received a sentence of more than one year for at least one of
his

prior

convictions.

The

parties

and

Amicus

agree

Simmons announced a new rule affecting § 922(g)(1).

that

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

because

should

be

applied

retroactively

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

general

rules

an
of

exception
criminal

to

the

procedure

will

9

not

rule,
be

new

constitutional

applicable

to

those

Appeal: 13-6254

cases

Doc: 57

Filed: 08/21/2013

which

announced.”

have

become

Pg: 10 of 16

final

before

the

new

rules

are

Id. at 310.

Miller makes two arguments as to why Teague does not apply.
First,

he

contends

that

Teague

and

applies

Simmons

only

to

constitutional

rules

involved

interpretation.

new

statutory

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.
because

the

Summerlin,
analysis

This

Supreme

542

U.S.

applies

to

holding
Court
at

has
has

348

“[n]ew

not

been

placed

reaffirmed

(2004),

that

substantive

in
the

in

doubt

Schriro

v.

retroactivity

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.”
Bousley, 523 U.S. at 620).

Schriro, 542 U.S. 352 (quoting

A new rule is substantive “if it
10

Appeal: 13-6254

Doc: 57

Filed: 08/21/2013

Pg: 11 of 16

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.
Court

applied

Carachuri

to

create

a

new

This

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

actually

was

sentenced

alleged

possessing

a

and

against

firearm

by

any

aggravating

him.
a

For

factors

defendants

convicted

felon

that

were

convicted

under

18

of

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.
this

Court

relied

on

Carachuri
11

in

reaching

its

The fact that
decision

in

Appeal: 13-6254

Doc: 57

Filed: 08/21/2013

Pg: 12 of 16

Simmons does not mean that Carachuri itself announced a new rule
of

substantive

Carachuri

in

implicitly
necessary,
Court’s

criminal

such

a

way

recognized
stating

as

that

that

rationale

law,

in

only
to

that

announce

some

Carachuri
Harp,

this
such

extension
“directly

rather

Carachuri directly overruled Harp.

Court

than

a

applied
We

logic

of

rule.

was

undermine[d]”
recognizing

the
that

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

firearm,

as

the

defined

previous
in

18

construction

U.S.C.

§

of

the

use

924(c)(1)—that

of

had

a

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

Appeal: 13-6254

and

Doc: 57

not

Filed: 08/21/2013

“mere

possession,”

Pg: 13 of 16

the

Supreme

Court

recognized

in

Bousley that Bailey announced a new substantive rule that was
retroactively
Bousley,

523

applicable
U.S.

at

to

cases

620-21.

on

Further,

collateral
in

Watson

review.

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

procedural

Carachuri

announced

a

rule

retroactively applicable on collateral review.
60.

that

was

not

691 F.3d at 559-

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

Appeal: 13-6254

Doc: 57

review.”

Filed: 08/21/2013

Simply

Carachuri

was

put,

the

retroactive

Powell was timely.

to

Pg: 14 of 16

Court

had

decide

if

to

determine

the

motion

whether
filed

by

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.
simply

recognized

that

the

recidivist

Instead, Carachuri
nature

of

a

prior

conviction had to be apparent on the face of the record in order
to

trigger

Carachuri,

enhanced
in

this

punishment.
context,

looks

Id.

at

559.

Therefore,

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
punishment.

and

range

of

conduct

This

additional
14

that

can

application

be

subject

and

to

analysis

Appeal: 13-6254

Doc: 57

distinguishes

Filed: 08/21/2013

Simmons

from

Pg: 15 of 16

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

Appeal: 13-6254

Doc: 57

Filed: 08/21/2013

Pg: 16 of 16

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

applicability.

(4th

Cir.

2011)

(en

banc),

has

retroactive

I unequivocally agree with my fine colleagues

that it does.

16