United States v. McRae

• Citation: 793 F.3d 392
• Decision Date: 13 July 2015
• Docket Number: No. 13–6878.,13–6878.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Madison Duane McRAE, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

793 F.3d 392

UNITED STATES of America, Plaintiff–Appellee

v.Madison Duane McRAE, Defendant–Appellant.

No. 13–6878.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 28, 2015.

Decided: July 13, 2015.

ARGUED:Robert Leonard Littlehale, III, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, D.C., for Appellant. William Michael Miller, Office of the United States Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF:William Blaise Warren, Molissa H. Farber, Diana V. Valdivia, Nathaniel D. Cullerton, Washington, D.C., Alexandra R. Clark, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, New York, for Appellant. Anne M. Tompkins, United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, Office of the United States Attorney, Asheville, North Carolina, for Appellee.

Before MOTZ, GREGORY, and WYNN, Circuit Judges.

Opinion

Reversed and remanded by published opinion. Judge GREGORY wrote the majority opinion, in which Judge WYNN joined. Judge WYNN wrote a separate concurring opinion. Judge MOTZ wrote a dissenting opinion.

GREGORY, Circuit Judge:

Appellant Madison Duane McRae was convicted of four drug-related charges on September 14, 2005. After an unsuccessful appeal and a pro se attempt to have his sentence vacated, corrected, or set aside under 28 U.S.C. § 2255, McRae filed a pro se motion with the district court entitled “Motion for Relief from Judgment 60(b)(1)(3)(6).” The district court dismissed the motion for lack of subject-matter jurisdiction, finding that it constituted an impermissible successive habeas petition rather than a proper Rule 60(b) motion. McRae appeals this judgment.

The threshold issue before us is whether we can review the district court's categorization of McRae's motion without first issuing a Certificate of Appealability (“COA”) pursuant to 28 U.S.C. § 2253(c)(1)(B). We hold that recent Supreme Court jurisprudence has made clear that § 2253(c) does not apply in this particular situation. Because we find that McRae's motion constitutes a mixed Rule 60(b) / § 2255 motion, we remand to the district court to afford McRae the opportunity to decide whether to abandon his improper claim or to proceed with a successive habeas petition.

I.

A.

In 2004, Immigration and Customs Enforcement (“ICE”) Agent Blaine Crum began investigating McRae's co-defendant, Rodney Green, after he became suspicious of drug trafficking activity. On August 21, 2004, Agent Crum learned that Green and McRae had traveled to Jamaica, as had Green's connection Andrea Spears. Two other women, Atonia Bailey and Latia Harris, had flown to Jamaica as well. Although the travelers flew out of two different airports (Green and McRae from one and Spears, Harris, and Bailey from the other), all of their tickets had been purchased using cash at the Columbus, Ohio airport.

When Spears, Harris, and Bailey returned from Jamaica they were questioned at the Charlotte Douglas International Airport by customs agents, who seized cocaine and marijuana from Harris and Bailey. McRae and Green were pulled aside by customs agents at the Memphis International Airport for secondary examinations; Agent Crum sat in on their interviews.

After the interviews, Agent Crum called the Charlotte airport and learned that Bailey and Harris had been transporting controlled substances. Bailey had also identified McRae using a photograph. Based on this information, Agent Crum arrested McRae and Green. He obtained a search warrant for, among other things, the information in McRae's cell phone, and retrieved McRae's text messages, list of contacts, and record of recent calls. Agent Crum learned that the number labeled “Tnia” was Bailey's, and that McRae and Green had contacted each other just before leaving for Jamaica.

In February 2005, McRae was charged with four drug-related offenses. At the ensuing trial, Green, Bailey, Harris, and Spears testified against McRae. According to Green, he began distributing cocaine to McRae in 2004 and later agreed to help McRae import cocaine from Jamaica. Green testified that, after he and McRae successfully imported a kilogram of cocaine in August 2004, Green and McRae arranged for Spears, Harris, and Bailey to travel to Jamaica. McRae purchased everyone's tickets, and Green bought 1.5 kilograms of cocaine while in Jamaica. Green also gave McRae Ace bandages

and duct tape for strapping the cocaine onto Bailey and two smaller packages for Harris and Spears to insert into their vaginas.

According to Bailey, in mid-August 2004 McRae offered her $500 to go to Jamaica and “bring something back.” J.A. 182. After initially agreeing Bailey changed her mind, but McRae said since they already had the tickets they could still go to Jamaica and “kick it.” J.A. 183–84. Bailey testified that when she got out of the shower on their last morning in Jamaica her ticket and birth certificate were missing. McRae told her that if she wanted to get home she would have to transport packages of cocaine, which she did.

Spears testified that she traveled to Jamaica with Green and a woman named Cheryl Turner in January 2004 and transported 500 Ecstasy pills to the United States. In the summer of 2004 Harris asked Spears to go back to Jamaica with Harris and Green. Spears initially declined, but agreed when Green told her this trip would not be like the first. According to Spears, on their last morning in Jamaica she got out of the shower and found a package of drugs lying on her clothes. After arguing with Green she inserted the package into her vagina, but she removed it before leaving.

According to Harris, she traveled to Jamaica at Green's invitation, and when she got out of the shower on their last morning there, a package of drugs was lying next to her clothes. Following Green's instructions, she inserted the package into her vagina.

Several law enforcement officers also testified at McRae's trial. Agent Crum testified that during McRae's interview at the airport, McRae said that he worked in real estate and that Green had paid for his trip to Jamaica. Agent Crum asked McRae if he could look through his cell phone. He found a contact labeled “Tnia,” and asked McRae if that contact was Atonia Bailey; McRae denied that it was. At some point McRae withdrew his consent for Agent Crum to search the phone, and Agent Crum did not go through the phone again until he obtained a warrant.

ICE Agent Robert Mensinger, who assisted Agent Crum with his investigation, testified about a conversation he had with McRae at the airport. According to Agent Mensinger, McRae asked whether he could do anything to help his situation. Agent Mensinger asked McRae if he had been advised of his rights, to which McRae responded, “Yeah, I know my rights.” J.A. 572. Agent Mensinger did not provide McRae with an official Miranda form, but he did advise McRae of his right to remain silent and his right to an attorney. As Agent Mensinger started to leave the room, McRae began talking about the trip to Jamaica. According to Mensinger, McRae initially said that he had not seen Bailey for several weeks, but later changed his story and admitted to being with her as well as Spears, Harris, and Green in Jamaica. He stated that he had seen two kilograms of cocaine in the bungalow in Jamaica, and told Agent Mensinger about how Green had strapped the cocaine onto “the girls.” J.A. 574–75.

McRae's counsel objected to both Agent Crum's and Agent Mensinger's testimony.

As Agent Crum began testifying about his interview with Green and McRae at the airport, counsel asserted that there was no corroborative evidence of the statements allegedly made by McRae and no waiver-of-rights form, and moved for voir dire. The district court denied the motion, stating that counsel could accomplish his goals on cross-examination. Similarly, counsel requested the opportunity to voir dire Agent Mensinger. The court denied the motion, but directed the government to lay a foundation to allow the court to determine whether there had been a violation of rights. Counsel had not moved to suppress testimony from either agent. Prior to jury deliberations, the court explained its denial of counsel's voir dire motions in greater detail. It noted that McRae's counsel had waived the right to a suppression hearing by failing to file a pre-trial motion to suppress, but found in the alternative that the testimony in question “was credible, the appropriate warnings were given, and ... any statements made by the defendant were knowing and voluntary.” J.A. 655–56.

B.

After a three-day trial, on September 14, 2005, a jury convicted McRae of four drug-related charges. On May 25, 2006, the district court sentenced McRae to 210 months of imprisonment for each of the four charges, to run concurrently. McRae appealed, but this Court affirmed his conviction and sentence. United States v. McRae, 235 Fed.Appx. 968 (4th Cir.2007) (per curiam) (unpublished). On May 12, 2008, McRae filed a petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Among other things, McRae claimed ineffective assistance of trial and appellate counsel and prosecutorial misconduct. On July 19, 2010, without holding an evidentiary hearing, the district court granted the government's motion for summary judgment. This Court subsequently held that McRae could not appeal absent a COA, which the Court declined to issue. United States v. McRae, 450 Fed.Appx. 284 (4th Cir.2011) (per curiam) (unpublished).

After filing unsuccessful petitions for rehearing and rehearing en banc, and a writ for certiorari, McRae filed a pro se motion entitled “Motion for Relief from Judgment 60(b)(1)(3)(6).” His motion highlighted five alleged errors in the district court's § 2255 proceedings: 1) the district court, relying on the government's memorandum, falsely stated that the court had not mentioned counsel's failure to move to suppress when denying counsel's motions for voir dire; 2) the district court mistakenly stated that...