Stewart v. U.S.

• Decision Date: 14 July 2011
• Docket Number: No. 09–15821.,09–15821.
• Parties: Sherodney STEWART, Petitioner–Appellant,v.UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

646 F.3d 856

23 Fla. L. Weekly Fed. C 103

Sherodney STEWART, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 09–15821.

United States Court of Appeals, Eleventh Circuit.

July 14, 2011.

Morad Fakhimi, Fed. Pub. Def., Atlanta, GA, for Appellant.Michelle Schieber, Charles L. Calhoun, U.S. Atty., Macon, GA, Michael A. Rotker, U.S. Dept. of Justice, Crim. Div., Washington, DC, for Appellee.Appeal from the United States District Court for the Middle District of Georgia.

Before TJOFLAT, WILSON and SEYMOUR,^* Circuit Judges.

WILSON, Circuit Judge:

Within weeks of being sentenced as a career offender, Sherodney Stewart set out, pro se, to have his predicate state convictions vacated. He succeeded. He then filed a motion under 28 U.S.C. § 2255, which is the subject of this appeal. It was his second such motion, but because it was not “second or successive” as that term is understood in context of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), we reverse the district court's dismissal and remand for resentencing.

I. BACKGROUND

Stewart pleaded guilty by agreement to distributing more than 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), and 18 U.S.C. § 2, on March 12, 2002. In June 2002, the district court sentenced him as a career offender to 360 months of imprisonment, to be followed by five years of supervised release. We dismissed his direct appeal on February 6, 2003, based on an appeal-waiver provision in his plea agreement. Stewart did not seek certiorari review of that dismissal, rendering his judgment final on May 7, 2003. He had one year from that date to seek habeas relief. See 28 U.S.C. § 2255(f)(1).

On May 3, 2004—four days before that year expired—Stewart filed a pro se motion entitled, “Motion for Equitable Tolling of the Time Period for the Filing of a § 2255 [Motion].” In it, he requested six additional months to file a § 2255 motion, and he articulated three challenges he intended to raise, including a Sixth Amendment ineffective-assistance-of-counsel claim, based on his attorney's failure to investigate the state convictions that predicated his career offender enhancement. The district court could have construed this motion for equitable tolling as a § 2255 motion;¹ instead, it entered an order denying the motion on August 19, 2004, that did not mention Stewart's claims.

Stewart restated those claims in a pro se § 2255 motion that he filed five weeks later, on September 29, 2004. He also filed a separate motion asking the court to consider his § 2255 claims as having been timely raised, based on their inclusion in his motion for equitable tolling. Again, the court disregarded the substance of Stewart's claims and dismissed his § 2255 motion as time-barred.

Meanwhile, Stewart had already begun the process of challenging his predicate state convictions. From August 2002 through March 2003, he enlisted the help of his father in gathering records and transcripts related to the state convictions, and he conducted legal research almost daily in the prison law library. After obtaining the necessary documents, Stewart filed a pro se state habeas corpus petition in April 2003. That petition traveled through the Georgia court system, and—after a favorable reversal by the Georgia Supreme Court—Stewart's state convictions were ultimately vacated on July 2, 2008.

The following month, on August 15, 2008, Stewart filed a second pro se § 2255 motion, requesting vacatur of his career offender enhancement pursuant to Johnson v. United States, 544 U.S. 295, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005). On October 15, 2009, the district court dismissed the motion, concluding that it was successive because his first § 2255 motion was “decided adversely to him.” The district court also noted that even if the motion were not successive, it would still have been dismissed because Stewart did not act with due diligence in obtaining the vacatur of his state convictions.

We granted Stewart a Certificate of Appealability (“CoA”) on this issue: “Whether the district court erred in finding that Stewart's motion was second or successive in light of Stewart's argument that the grounds he has asserted for challenging his sentence did not exist at the time he filed his previous motion to vacate.”²

II. DISCUSSION

The question before us is whether Stewart's numerically second § 2255 motion was “second or successive” under AEDPA, and we consider that question de novo. See McIver v. United States, 307 F.3d 1327, 1329 (11th Cir.2002).

A. Johnson v. United States

In Johnson, the Supreme Court held that the state court vacatur of a predicate conviction is a new “fact” that triggers a fresh one-year statute of limitations under § 2255(f)(4),³ so long as the petitioner exercised due diligence in seeking that order. 544 U.S. at 302, 125 S.Ct. at 1577. The government had argued that the facts supporting Johnson's claim were those on which he challenged the validity of his state convictions, so they did not fit into the § 2255(f)(4) rubric. Id. at 305–06, 125 S.Ct. at 1578–79. The Court disagreed, explaining that though the “circumstances rendering the underlying predicate conviction invalid are ultimate subjects of fact supporting the § 2255 claim,” a petitioner cannot obtain relief under § 2255 before the state vacatur. Id. at 305, 125 S.Ct. at 1578–79. Therefore, the state court vacatur is the “fact” that forms the basis of a challenge under § 2255. Id. at 305–07, 125 S.Ct. at 1578–80.

The Court's rationale was based, in part, on its previous holdings in Custis v. United States⁴ and Daniels v. United States⁵—which explain that only after an underlying conviction is successfully challenged may a defendant seek relief in federal courts. Id. at 303–04, 125 S.Ct. at 1577–78. Having concluded that a defendant's ability to pursue federal habeas relief was contingent upon his success at the state level, the Court was left to determine how such a defendant was to obtain relief. The Court ultimately decided that, because success in the state courts is a prerequisite for federal habeas relief, and because the facts supporting a state court challenge “cannot by themselves be the basis of a § 2255 claim,” the vacatur order itself gives rise to a movant's claim. Id. at 305–07, 125 S.Ct. at 1578–80.

Johnson established that the basis for a claim challenging a sentence predicated on faulty state convictions arises when the order vacating those predicate convictions issues. Id., 125 S.Ct. at 1579–80. The vacatur order gives a defendant both the basis to challenge an enhanced federal sentence and a new one-year period in which to pursue that challenge.

B. AEDPA's Gatekeeping Provisions: “Second or Successive”

AEDPA dramatically limits successive attempts at habeas relief. If a § 2255 motion is deemed “successive,” a court may consider it only if it complies with that section's gatekeeping provision, which provides:

A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). AEDPA's restrictions on second or successive motions are meant to forestall abuse of the writ of habeas corpus, see Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 2340, 135 L.Ed.2d 827 (1996), by, for instance, barring successive motions raising habeas claims that could have been raised in earlier motions where there was no legitimate excuse for failure to do so, see McCleskey v. Zant, 499 U.S. 467, 493–95, 111 S.Ct. 1454, 1469–71, 113 L.Ed.2d 517 (1991). But the Supreme Court has unequivocally explained that the phrase “second or successive” is not self-defining and does not refer to all habeas applications filed second or successively in time. Panetti v. Quarterman, 551 U.S. 930, 943–44, 127 S.Ct. 2842, 2853, 168 L.Ed.2d 662 (2007).⁶ Rather, it is a term of art that takes its full meaning from the Supreme Court's case law, including decisions predating the enactment of AEDPA. Id., 127 S.Ct. at 2853.

Particularly when a petitioner raises a claim that could not have been raised in a prior habeas petition, courts have forgone a literal reading of “second or successive.” See, e.g., Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir.2003) (en banc) (finding that Singleton's petition was not successive when it raised a claim that did not arise until he was subject to an involuntary medication order pursuant to Washington v. Harper⁷ and his execution date had been scheduled); United States v. Orozco–Ramirez, 211 F.3d 862, 869, 871 (5th Cir.2000) (“[Orozco–Ramirez's] claim of ineffective assistance of counsel during [his] out-of-time appeal ... could not have been raised in [his] prior proceeding and, thus, is not ‘second or successive.’ ”).⁸

But adopting that approach too broadly would threaten Congress's clear intention to limit “second or successive” attempts at post-conviction relief. Therefore, we must confront the difficult task of distinguishing between those previously unavailable claims that Congress contemplated in AEDPA's gatekeeping provisions and those that cannot reasonably be deemed “successive.”

The Fifth Circuit addressed this difficulty in Leal Garcia v. Quarterman, 573 F.3d 214, 222 (5th Cir.2009). It concluded that a subsequent § 2254 petition that was based on a defect that did not arise until after the proceedings on the previous petition were completed was not successive. Id. at 224. The facts in Leal Garcia are complicated and presented fully in the Fifth Circuit's opinion, but the following facts are most...