Opinion
NO. 2:03-CR-1-BO-1 NO, 2:11-CV-72-BO
04-02-2012
JARVIS LEE BRYANT, Petitioner, v. UNITED STATES OF AMERICA, Respondent,
ORDER
This matter is before the Court on Mr. Bryant's Motion to Vacate under 28 U.S.C. § 2255 [DE 23], in which he asserts that, in light of the Fourth Circuit's recent decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), one of his three required predicate offenses is no longer a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"). The United States responded on February 16, 2012 [DE 27]. Mr. Bryant replied on February 20, 2012 [DE 29]. The Motion is ripe for adjudication. For the following reasons, Mr. Bryant's Motion is GRANTED, his sentence is VACATED, and this matter will be SET FOR RESENTENCING by separate notice.
BACKGROUND
On May 14, 2003, Mr. Bryant pleaded guilty, pursuant to a plea agreement, to a single count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and 924. On August 28, 2003, this Court sentenced Mr. Bryant to 188 months of imprisonment, pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"). The judgment was entered and became final on October 2, 2003, as Mr. Bryant did not file a direct appeal. On August 26, 2004, Mr. Bryant filed his first motion to vacate pursuant to 28 U.S.C. § 2255, asserting claims of prosecutorial misconduct and ineffective assistance of counsel. That motion was dismissed by this Court on March 29, 2005, due in part to the valid waiver in his plea agreement.
On December 22, 2011, Mr. Bryant filed the instant motion pursuant to 28 U.S.C. § 2255. His petition alleges that one of his three ACCA predicate felony convictions, a 1998 breaking and entering conviction in Johnston County, did not expose him to punishment in excess of one year. Therefore, he argues that he is entitled to be resentenced without application of the ACCA. The United States responds that the Supreme Court did not create a new rule in Carachuri-Rosendo v. Holder that is retroactively applicable on collateral review. Therefore, it asserts that Mr. Bryant's petition must be dismissed as untimely filed.
DISCUSSION
A one-year statute of limitations applies to section 2255 petitions, as set out in 28 U.S.C. § 2255(f). That provision provides that a petitioner may file his section 2255 petition within one year of "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." 28 U.S.C.§ 2255(f)(3).
I. Carachuri-Rosendo v. Holder Is Retroactively Applicable On Collateral Review
In Carachuri-Rosendo v. Holder, the United States Supreme Court created a new rule that is retroactively applicable on collateral review. A rule is new if "the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, 489 U.S. 288, 301 (1989)(internal citation omitted). When a conviction is final, a "new rule" announced by the Supreme Court only applies if it is a substantive rule. Schriro v. Summerlin, 542 U.S. 348, 351 (2004). A substantive rule is one that "decriminalize[s] a class of conduct [or] prohibit[s] the imposition of [certain] punishment on a particular class of persons." Saffle v. Parks, 494 U.S. 484,494 (1990). These substantive rules are applied retroactively because they "necessarily carry 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." Schriro, 542 U.S. at 352 (internal citation and quotation marks omitted).
In Carachuri, the Court created a new substantive rule that held that the term "aggravated felony" in the IN A no longer included state offenses that, though they could have been enhanced by a federal recidivist provision had they been federally charged, were not, in fact, so charged or enhanced. Carachuri-Rosendo, 130 S. Ct. at 2589. Therefore, going forward, a district court can only consider a penalty enhanced by a recidivism statute "when the [recidivist] finding is a part of the record of conviction." Id. at 2587 n.12. If that finding is not a part of the record of conviction, Carachuri holds that an individual has "not been convicted of a felony punishable under the Controlled Substances Act," and he remains eligible for cancellation of removal or waiver of inadmissibility under 8 U.S.C. § 1229b(a). Id. at 2589-90. In other words, the Court narrowed the scope of the INA by interpreting the term "aggravated felony" in 8 U.S.C. § 1229b(a) to decriminalize certain individuals who would otherwise have been aggravated felons under the INA-it altered the "the class of persons that the law punishes." See Schriro, 542 U.S. at 353; United States v. Halstead, 634 F.3d 270, 274 (4th Cir. 2011).
Because this Court holds that Carachuri is retroactively applicable to cases on collateral
review, Mr. Bryant was statutorily entitled to file his petition within one year after the Supreme Court decided Carachuri-by June 14, 2011.
II. United States v. Simmons Reinterpreted Carachuri-Rosendo v. Holder To
An Extent That Requires Application of Equitable Tolling
The Supreme Court has held that a petitioner is entitled to equitable tolling if (1) he has been pursuing his rights with "reasonable diligence" and (2) some extraordinary circumstance prevented him from timely filing. Holland v. Florida, 130 S. Ct. 2549, 2562, 2565 (2010). The Fourth Circuit has defined "extraordinary circumstances" as (a) extraordinary circumstances, (b) beyond the petitioner's control or external to his own conduct, (c) that prevented him from filing on time. United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004).
A. Mr. Bryant Has Pursued His Rights With Reasonable Diligence
As noted by the Supreme Court in Holland, "the 'flexibility' inherent in 'equitable procedure' enables courts 'to meet new situations [that] demand equitable intervention, and to accord all the relief necessary to correct...particular injustices," Holland, 130 S. Ct. at 2563. Therefore, Mr. Bryant's reasonable diligence must be viewed in light of the profound change in circuit law effectuated by Simmons. Mr. Bryant filed a section 2244 petition with the Fourth Circuit seeking review of his Simmons claim, which was docketed on October 28, 2011 as No. 11-280, just more than two months after the en banc decision in Simmons, The petition was denied on November 4, 2011. On December 13, 2011, the Fourth Circuit sent a letter to Mr. Bryant at FCI Bennettsville in response to his inquiry about his case, notifying him of the court's denial of his motion. On December 23, 2011, Mr. Bryant's section 2255 petition was filed with this court [DE 23]. Although ignorance of the law, even in the case of an unrepresented prisoner, is not a basis for equitable tolling, see Sosa, 364 F.3d at 512, Mr. Bryant has pursued his rights diligently by attempting to obtain review in his case within a very short period after it became clear that his case was affected by Simmons.
Courts have held that opinions of the circuit court overruling prior circuit law can satisfy the "extraordinary circumstance" requirement. See Burns v. Prudden, 588 F.3d 1148, 1151 (8th Cir. 2009)(noting that the State failed to cite any authority for the proposition that "courts should demand pro se petitioners to anticipate that a court will overrule established law"). Mr. Bryant filed the correct motion, in the proper court, within four months of the en banc decision in Simmons. In light of the unique circumstances of this case, Mr. Bryant has exhibited the requisite diligence to satisfy the Holland test.
B. The Fourth Circuit's En Banc Opinion in Simmons Was An Extraordinary
Circumstance Beyond Mr. Bryant's Control That Prevented Him From Filing On
Time
In this case, controlling Fourth Circuit precedent until the date the Simmons en banc opinion was issued-on August 17, 2011-provides the necessary "extraordinary circumstance" required to justify equitable tolling. In order to understand the extraordinary nature of the change in law effectuated by Simmons, it is instructive to review the procedural history of the relevant cases.
Jason Simmons pleaded guilty to drug trafficking in federal court and was subjected to a sentencing enhancement under the Controlled Substances Act because the district court found that his prior state conviction for marijuana possession was for an offense "punishable by imprisonment for more than one year." The Fourth Circuit affirmed in an unpublished opinion. United States v. Simmons, 340 F. App'x 141 (4th Cir. 2009) ("Panel I"). The Supreme Court vacated that judgment and remanded the case to the Fourth Circuit for "further consideration in light of Carachuri-Rosendo v. Holder." 130 S. Ct. 3455. A panel of the Fourth Circuit held that Carachuri did not require a change in the previous holding. United States v. Simmons, 635 F.3d 140 (4th Cir. 2011) ("Panel II"). However, the Fourth Circuit voted to rehear the case en banc, and in a published opinion, the court of appeals vacated Mr. Simmons's sentence in light of Carachuri, holding that the opinion of the Supreme Court "clearly forelcose[d] reliance on Harp ." Simmons, 649 F.3d at 247.
In United States v. Harp, the Fourth Circuit had held that "to determine whether a conviction is for a crime punishable by a prison term exceeding one year...we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history." 406 F.3d 242, 246 (4th Cir. 2005) (internal citation omitted).
Carachuri was an immigration case in which the Supreme Court was faced with the question of whether Mr. Carachuri-Rosendo was eligible to seek cancellation of removal or waiver of inadmissability. Carachuri-Rosendo, 130 S. Ct. at 2580. To answer that question, the Court first had to determine whether he had been convicted of an "aggravated felony" pursuant to 8 U.S.C. § 1229b(a)(3), which would bar that relief. An "aggravated felony" under the INA includes, inter alia, felonies punishable under the Controlled Substances Act for which the "maximum term of imprisonment authorized" is "more than one year." 18 U.S.C. § 3559(a). Recidivist simple possession is punishable by up to two years of imprisonment, but "requires that a prosecutor charge the existence of the prior simple possession conviction before trial, or before a guilty plea. 21 U.S.C. §§ 844(a), 851(a)(1). Because Mr. Carachuri-Rosendo had been convicted of a state simple possession offense that, though it could have been charged in federal court as a felony, was not, the Court held that he had not been convicted of an aggravated felony. In so doing, the Court rejected the approach that would have allowed "hypothetical conduct" proscribed by a state statute to demonstrate that an individual could have been prosecuted for a felony in federal court. It held that
the defendant must have been actually convicted of a crime that is itself punishable as a felony under federal law. The mere possibility that the defendant's conduct, coupled with facts outside the record of conviction, could have authorized a felony conviction under federal law is insufficient to satisfy the statutory command that a noncitizen be 'convicted of a[n] aggravated felony' before he loses the opportunity to seek cancellation of removal.
Carachuri-Rosendo, 130 S. Ct. at 2589 (quoting 8 U.S.C. § 1229b(a)(3)).
Sitting en bane, the Fourth Circuit in Simmons interpreted Carachuri-Rosendo to compel the result that individuals sentenced pursuant to North Carolina's Structured Sentencing Act could not be classified as "felons" unless the individual defendant had been exposed to a sentence of imprisonment in excess of one year. 649 F.3d at 249. Under North Carolina's structured sentencing regime, felony sentences are contingent on the designated "class of offense" and the offender's "prior record level," which are each established by statute. N.C. Gen. Stat. §15A-1340.13(b). Once these two factors have been established, the sentencing judge matches the factors to a statutory table, which provides a presumptive range, a mitigated range, and an aggravated range. N.C. Gen. Stat §15 A-l 340.17(c). The presumptive range governs the sentencing unless the judge makes written findings that justify a departure to the aggravated or mitigated range. N.C. Gen. Stat. §§ 15A-1340.13(e); 15A-1340.16(c). Once the appropriate range has been determined, the defendant's minimum sentence must fit within that range. In Simmons, the Fourth Circuit held that the federal sentencing court looks to the "conviction itself and, if the state sentencing court "never made the recidivist finding necessary" to expose the defendant to a higher sentence, the Government "cannot now rely on such a finding to 'set the maximum term of imprisonment."' Simmons, 649 F.3d at 243 (citing Carachuri-Rosendo, 130 S. Ct. at 2587 n.12 (2010)).
The Fourth Circuit, sitting en banc, felt that Carachuri's holding that the "actual recidivist finding...must be part of a particular defendant's record of conviction for the conviction to qualify as a felony," compelled its result in Simmons. Simmons, 649 F.3d at 244 (citing United States v. Haltiwanger, 637 F.3d 881, 884 (8th Cir. 2011)). However, a section 2255 petitioner would have had no such notice that the law applicable to his case had changed so dramatically: Carachuri squarely addressed itself to the immigration context and turned on whether the proscribed conduct of an individual's state offense could, hypothetically, have been punished as a federal felony. Simmons treated the question of whether North Carolina state criminal convictions were "punishable by a term of imprisonment exceeding one year" under existing state law. Carachuri looked to the underlying conduct and compared it to existing federal crimes. Simmons, by contrast, looked at the state conviction and determined whether a given crime was "punishable by a term of imprisonment exceeding one year."
The significant differences between these two cases was recognized by the court of appeals itself. The initial reviewing panel, on remand from the Supreme Court, held that "Carachuri-Rosendo is inapplicable to our present inquiry...[because] the plain language of the immigration statute interpreted by the Supreme Court in that case differs in critical respects from the statute at issue in the criminal proceeding before us. Whatever the impact of Carachuri-Rosendo in other settings, it does not compel a different view of the plain language of §802(44)." Simmons, 635 F.3d at 145 ("Panel II"). The Fourth Circuit panel distinguished Carachuri's inquiry as "defendant-specific" and its inquiry in Simmons as "offense-specific" because Simmons' case did not require a "hypothetical" inquiry into whether a state court prosecutor could have charged Simmons differently. Id. It was only six months later, sitting en banc, that the Fourth Circuit interpreted the old Harp rule to require consideration of "hypothetical aggravating factors" to calculate an individual's maximum punishment. Simmons, 649 F.3d at 244. It was only then that the Fourth Circuit held that Harp must be overturned.
To put it simply, any section 2255 petitions filed after Carachuri and before the en banc decision in Simmons would have been denied, as the district court would have been bound by the controlling Fourth Circuit precedent in Harp. It would be absurd to require a section 2255 petitioner to have forecasted the ultimate effect of Carachuri on Fourth Circuit interpretations of North Carolina state criminal convictions. Understanding that the clear and unambiguous law of this circuit, until August 17, 2011, dictated that Harp was controlling law, this Court holds that equitable tolling is warranted in this exceptional circumstance.
C. This Holding Is Consistent With the Principle Announced in Dodd v. United States
In Dodd v. United States, the Supreme Court held that the date from which section 2255's period of limitations begins to run is the date on which the right is initially recognized by the Supreme Court, not the date on which the right is made retroactive. Dodd, 545 U.S. at 353, 35455. Here, Mr. Bryant does not seek the benefit of a later date merely out of a claim that he was unaware whether Carachuri would be retroactive on collateral review. Rather, he seeks the benefit of the date of the en banc decision in United States v. Simmons because it was not until that date that the Fourth Circuit determined the meaning of Carachuri for those convicted of North Carolina state crimes.
Following Dodd, the operative date for statute of limitations period purposes is the date of decision of Carachuri--June14, 2010. However, this date must be equitably tolled until August 17, 2011 to account for the dramatic shift in controlling circuit precedent. Because Mr. Bryant filed his section 2255 petition within a reasonable period after the Simmons en banc decision, the Court holds that it was timely filed.
III. In Light of United States v. Simmons, Mr. Bryant Is No Longer an Armed Career
Criminal
Mr. Bryant's 1998 breaking and entering conviction in Johnston County, at ¶ 20 of his presentence report, is no longer a proper predicate for application of the ACCA. His record of conviction reflects an offense class of H and a prior record level of III. Because the sentencing judge did not make any written findings of recidivism and imposed the punishment pursuant to a plea arrangement, Mr. Bryant was not convicted of a crime "punishable by a term of imprisonment exceeding one year" when he was convicted of this offense. Therefore, after Simmons, he no longer has three previous convictions for "violent felonies" or "serious drug offenses" and no longer meets the requirements for application of ACCA. 18 U.S.C. § 924(e).
CONCLUSION
For the foregoing reasons, Mr. Bryant's Motion [DE 23] is GRANTED, his sentence is VACATED, and this matter will be SET FOR RESENTENCING by separate notice.
SO ORDERED, this the 2 day of April, 2012.
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TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE