McClain v. USA
ORDER dismissing 1 Motion to Vacate/Motion for Writ. Signed by Chief Judge Robert J. Conrad, Jr on 2/20/2013. (eef)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CAMERON SCOTT McCLAIN
UNITED STATES OF AMERICA
THIS MATTER is before the Court on remand from the United States Court of Appeals
for the Fourth Circuit (Case No. 3:12-cv-5, Doc. No. 12: Order), Petitioner’s Motion to Vacate
Sentence and Terminate Supervised Release under 28 U.S.C. § 2241, or Alternatively for Writ of
Coram Nobis (Case No. 3:12-cv-82, Doc. No. 1), and the Government’s Response in Support in
both cases. For the reasons that follow, Petitioner’s claims for relief will be denied, and the §
2255 and § 2241 motions will be dismissed. Petitioner’s alternative petition for writ of error
coram nobis will be denied.
On October 28, 2008, a federal grand jury indicted Petitioner for possessing a firearm
after being convicted of a crime punishable for a term exceeding one year, in violation of 18
U.S.C. § 922(g)(1). (Case No. 3:08-cr-218, Doc. No. 1). Petitioner pled guilty before a
magistrate judge without the benefit of a plea agreement. (Id., Doc. No. 11: Acceptance and
Entry of Guilty Plea). This Court sentenced Petitioner to thirty-two months’ imprisonment
followed by two years’ supervised release and entered judgment on September 3, 2009. (Id.,
Doc. No. 16: Judgment). Petitioner did not appeal his conviction or sentence.
He was released from confinement and began his term of supervised release on February
11, 2011. (Id., Doc. No. 20: Petition for Revocation of Supervised Release). On September 26,
2011, a magistrate judge approved the issuance of a warrant for Petitioner’s arrest based on
alleged possession of marijuana with intent to distribute and a drug test positive for marijuana.
(Id.). Petitioner was transferred to federal custody on September 30, 2011, and released later on
bond pending a final revocation hearing. (Id., Doc. No. 25: Order). On January 5, 2012, the
Court scheduled a final revocation hearing for January 18, 2012.
Later that day, Petitioner filed the instant § 2255 motion claiming he is not a felon under
§ 922(g)(1) in light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), because his
predicate conviction for possession of marijuana with intent to distribute did not expose him to
more than one years’ imprisonment. (Case No. 3:12-cv-5, Doc No. 1 at 3). The Government
conceded Petitioner is actually innocent of the § 922(g)(1) offense, but asserted his motion was
untimely under § 2255. (Id., Doc. No. 3: Response at 1). The Court denied and dismissed the
motion as untimely under 28 U.S.C. § 2255(f) on February 1, 2012. (Id., Doc. No. 5: Order).
While Petitioner’s appeal of that decision was pending, the Government moved Fourth Circuit to
remand the case so it could waive its statute-of-limitations defense. (Case No. 12-6407, Doc. No.
16). The Fourth Circuit granted the motion and remanded the case to this Court on August 29,
2012. (Id., Doc. No. 17).
After the Court denied Petitioner’s Motion to Vacate under § 2255, he filed the instant
Motion to Vacate under § 2241, or alternatively for writ of coram nobis on February 7, 2012.
(Case No. 3:12cv82, Doc. No. 1). The Government responded on October 19, 2012, that the §
2241 motion should be denied since it had waived its statute-of-limitations defense to the § 2255
motion. (Id., Doc. No. 2). Both motions are now ripe for disposition.
STANDARD OF REVIEW
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to
promptly examine motions to vacate, along with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the
claims set forth therein. After examining the record in this matter, the Court finds that the
argument presented by the Petitioner can be resolved without an evidentiary hearing based on the
record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
Relief under 28 U.S.C. § 2255
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act
(the “AEDPA”). Among other things, the AEDPA amended 28 U.S.C. § 2255 to include a
one-year statute of limitations period for the filing of a motion to vacate. The limitation period
runs 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, 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).
Here, Petitioner’s criminal judgment became final for purposes of the statute of
limitations on or about September 17, 2009, when the time period for filing a direct appeal
expired. Fed. R. App. P. 4(b)(1)(A)(i)(2008); Clay v. United States, 537 U.S. 522, 527 (2003).
As noted above, the instant § 2255 motion was not filed until January 5, 2012, over two years
after the judgment became final. Additionally, as detailed below, no right has been newly
recognized by the Supreme Court that has been made retroactively applicable to cases on
collateral review. Finally, Petitioner is not entitled to equitable tolling because he does not
present a meritorious claim for relief. Therefore, the motion is untimely.
However, the Government’s response notes “the Department of Justice has decided that,
in this category of cases, in the interests of justice, it will waive reliance on the statute-oflimitations defense.” (Case No. 3:12-cv-5, Doc. No. 13: Response at 3). The Government asserts
that under the Fourth Circuit’s en banc decision in United States v. Simmons, 649 F.3d 237 (4th
Cir. 2011), Petitioner has no predicate conviction for an offense punishable by more than one
year in prison.1 Therefore, the Government requests that the Court vacate the conviction for
being a felon in possession of a firearm. (Case No. 3:12-cv-5, Doc. No. 13: Response at 1).
Although Petitioner has been released from custody, he remains on supervised release
and stands convicted of a federal felony. These continuing consequences satisfy the “case or
controversy requirement” of Article III, § 2, of the Constitution. See Spencer v. Kemna, 523
U.S. 1, 7 (1998) (former prisoner must show “concrete and continuing injury” to maintain
habeas action following release from confinement). For this reason, and, in light of the
Government’s waiver of the statute of limitation defense, the Court may consider the merits of
The most serious underlying felonies for which Petitioner was convicted (possession with intent to sell marijuana,
carrying a concealed gun, and possession of a handgun by a minor) carried a maximum of eight months’
imprisonment. (Case No. 3:08-cr-218, Doc. No. 14: Presentence Report at 5).
In Simmons, the Fourth Circuit en banc held that in order for a prior North Carolina
conviction to serve as a predicate felony offense, the individual defendant must have been
convicted of an offense for which that defendant could be sentenced to a term exceeding one
year. Simmons, 649 F.3d at 243. That decision resulted from the court’s application of the
Supreme Court’s holding in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), namely, that
the focus of whether a prior conviction qualified as a felony must center on the defendant that is
before the sentencing court and not a hypothetical defendant. In Simmons, the Fourth Circuit
expressly overruled United States v. Harp, 406 F.3d 242 (4th Cir. 2005), which previously held
that in determining “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.” 649 F.3d at
243 (quoting Harp, 406 F.3d at 246) (emphasis omitted).
Subsequently the Fourth Circuit found that the Supreme Court’s decision in Carachuri
announced a procedural rule not applicable to cases on collateral review. United States v. Powell,
691 F.3d 554, 559-60 (4th Cir. 2012). Although the Government’s Response was filed months
after Powell, it does not address that decision’s limitation on the reach of Simmons. Even so, the
Fourth Circuit has recently ruled that Simmons does not apply to cases on collateral review. In
United States v. Wheeler, No. 11-6643, 2012 WL 5417557, at *1 (4th Cir. Nov. 7, 2012)
(unpublished), the court explained that a “claim for retroactive application of the Supreme
Court’s opinion in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), and our opinion in
United States v. Simmons, 649 F.3d 237, 241-45 (4th Cir. 2011) (en banc), fails in light of our
recent opinion in United States v. Powell, 691 F.3d 554 (4th Cir. 2012).” See also United States
v. Brown, No. 12-7713, 2012 WL 6604898, at *1 (4th Cir. Dec. 12, 2012) (unpublished)
(rejecting claim that prior state conviction no longer qualified as a felony because Simmons is
not retroactively applicable to cases on collateral review).
The Fourth Circuit has recently and repeatedly said Simmons is not retroactive. This
inferior Court cannot say that it is. Petitioner is not eligible for relief under § 2255.
Relief under 28 U.S.C. § 2241
The savings clause in § 2255(e) provides a petitioner the opportunity to pursue habeas
relief under § 2241 if it appears that the remedy allowed in a § 2255 proceeding is inadequate or
ineffective to test the legality of the person’s conviction. Petitioner has presented his claim in his
§ 2255 motion and is not entitled to relief on the merits. However, that does not render his §
2255 proceeding “ineffective” such that he may now pursue relief under § 2241. See In re Vial,
115 F.3d 1192, 1194 n.5 (4th Cir. 1997) (“the remedy afforded by § 2255 is not rendered
inadequate or ineffective merely because an individual has been unable to obtain relief under that
provision, or because an individual is procedurally barred from filing a § 2255 motion.”
(citations omitted)). Therefore, Petitioner is not entitled to relief under § 2241 because he has
had the opportunity to test the legality of his sentence under § 2255.
Writ of Coram Nobis
Relief under a theory of coram nobis was traditionally available only to raise factual
errors affecting the validity and regularity of the underlying proceeding itself, such as a
defendant’s being under age or deceased. Carlisle v. United States, 517 U.S. 416, 429 (1996).
Although the All Writs Act provides residual authority for courts to issue writs not otherwise
addressed by statute, such authority ends where a statute controls. Id. Thus, the Fourth Circuit
found that the writ was properly granted “in light of a retroactive dispositive change in the law of
mail fraud” where petitioners had already served their sentences and had no other remedy
available. United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988) (vacating convictions in
wake of McNally v. United States, 483 U.S. 350 (1987)).
Petitioner was lawfully sentenced under then-existing law, and subsequent decisions in
Carachuri and Simmons have not been made retroactive. Therefore, Petitioner is not entitled to
coram nobis relief because no retroactive change in the law has rendered the prior proceedings
invalid, and he has had the opportunity to seek a remedy under
IT IS, THEREFORE, ORDERED that:
Petitioner’s § 2255 motion, (Case No. 3:12-cv-5, Doc. No. 1), is DISMISSED;
Petitioner’s § 2241motion (Case No. 3:12-cv-82, Doc. No. 1) is DISMISSED;
Petitioner’s alternative petition for writs of coram nobis is DENIED.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2255 Cases, this Court ISSUES a certificate of appealability as reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong. See United
States v. Powell, 691 F.3d 554, 560, 564 (4th Cir. 2012) (King, J., dissenting in part) (strongly
disagreeing with majority’s analysis finding Carachuri to announce a procedural rule in all
cases); Miller El v. Cockrell, 537 U.S. 322, 336 38 (2003)(defining standard for issuing
certificate of appealability).
Signed: February 20, 2013
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