Summary
finding the petitioner innocent of both the 922(c) conviction and 922(e) enhancement, and noting a Dept. of Justice policy "not to challenge meritorious claims for relief under United States v. Simmons"
Summary of this case from Hayes v. ZieglerOpinion
No. 5:05-CR-00207-1-F No. 5:12-CV-00196-F
08-28-2012
MICHAEL JUSTIN SMITH, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
This matter is before the court on the Government's Response [DE-77], withdrawing its arguments against the relief sought by petitioner, Michael Justin Smith, from his 180-month sentence imposed on May 18, 2006. See Judgment [DE-26]. The Government had opposed Smith's April 13, 2012, motion pursuant to 28 U.S.C. § 2255 [DE-68] as successive, and sought dismissal on that ground by motion filed May 21, 2012. See [DE-74]. However, on August 23, 2012, Smith filed a Motion to Vacate Sentence and Conviction pursuant to 28 U.S.C. § 2241, arguing that he otherwise was without a remedy unless he was permitted to seek relief under § 2241, in light of the Department of Justice's recently announced policy not to challenge meritorious claims for relief under United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).
The Government reasserts its position that Smith's § 2255 motion must be dismissed as successive, but it agrees that under § 2241, Smith does not face the same procedural bar. The Government concedes Smith's § 2241 motion has merit, and "hereby waives the personal jurisdiction and venue defenses available through the filing of this instant petition in this district, see Kanai v. McHugh, 638 F.3d 251, 256-58 (4th Cir. 2011), and [agrees that] petitioner's claim should be granted." Response [DE-77]. The Government deliberately has waived the personal jurisdiction and venue defenses to Smith's § 2241 motion. See id.
A review of Smith's prior criminal record, in light of the ruling in Simmons and the content of the Government's Response [DE-77], together with the record in this case convinces the court that Smith in fact was and is "actually innocent" of the § 922(c) conviction and of being an "armed career criminal" under § 922(e). Because he was not a "felon" at the time of that alleged conduct under North Carolina law, as properly construed, an element of the § 922(g) offense was lacking.
In summary, Smith's § 2241 motion [DE-76] is ALLOWED for the reasons stated herein. The judgment of conviction and sentence, entered on May 18, 2006 [DE-26] hereby is VACATED. Michael Justin Smith is ORDERED to be released from federal custody, subject to pending detainers, if any. His § 2255 motion [DE-68] is DENIED as successive, and that motion as well as the Government's motion to dismiss it [DE-74] are DISMISSED as moot.
SO ORDERED.
_______________
JAMES C. FOX
Senior United States District Judge