United States v. Surratt

• Decision Date: 31 July 2015
• Docket Number: No. 14–6851.,14–6851.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Raymond Roger SURRATT, Jr., Defendant–Appellant. Steven Harris Goldblatt, Court–Assigned Amicus Counsel, National Association of Criminal Defense Lawyers; Douglas A. Berman, Professor, Amici Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

797 F.3d 240

UNITED STATES of America, Plaintiff–Appellee

v.Raymond Roger SURRATT, Jr., Defendant–Appellant.

Steven Harris Goldblatt, Court–Assigned Amicus Counsel

National Association of Criminal Defense Lawyers; Douglas A. Berman, Professor, Amici Supporting Appellant.

No. 14–6851.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 27, 2015.

Decided: July 31, 2015.

Rehearing En Banc Granted Dec. 2, 2015.

ARGUED:Ann Loraine Hester, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Office of The United States Attorney, Asheville, North Carolina, for Appellee. Erika L. Maley, Sidley Austin LLP, Washington, D.C., for Amici Curiae. Steven Harris Goldblatt, Georgetown University Law Center, Washington, D.C., as Court–Assigned Amicus Counsel. ON BRIEF:Ross Hall Richardson, Executive Director, Joshua B. Carpenter, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Office of the United States Attorney, Asheville, North Carolina, for Appellee. Douglas A. Berman, Professor of Law, The Ohio State University, Columbus, Ohio; Jeffrey T. Green, Kimberly A. Leaman, Sidley Austin LLP, Washington, D.C., for Amici Curiae. Ruthanne M. Deutsch, Supervising Attorney, Utsav Gupta, Student Counsel, William Hornbeck, Student Counsel, Meredith Wood, Student Counsel, Appellate Litigation Program, Georgetown University Law Center, Washington, D.C., for Court–Assigned Amicus Counsel.

Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit Judges.

Opinion

Affirmed by published opinion. Judge AGEE wrote the majority opinion, in which Chief Judge TRAXLER joined. Judge GREGORY wrote a dissenting opinion.

AGEE, Circuit Judge:

In 2005, after pleading guilty to conspiracy to distribute cocaine, Raymond Surratt was sentenced to life imprisonment. We affirmed his conviction and sentence on appeal, and Surratt's motion to vacate his conviction and sentence under 28 U.S.C. § 2255 was likewise denied. Neither Surratt's direct appeal nor his § 2255 motion questioned the legality of his mandatory life sentence.

Several years later, Surratt returned to this Court and asked for permission to file a second or successive § 2255 motion. Surratt's request was premised on United States v. Simmons, 649 F.3d 237 (4th Cir.2011) (en banc), which in turn overruled our prior decision in United States v. Harp, 406 F.3d 242 (4th Cir.2005). Had Surratt been sentenced after Simmons, he would have faced a lower mandatory minimum sentence than the mandatory life term that he actually received. Surratt maintained that this difference entitled him to be resentenced. But Congress set out certain conditions that must be met before a successive motion may be permitted, and Surratt did not meet those required conditions. See 28 U.S.C. § 2255(h). We therefore denied him permission to file a successive motion. See In re Surratt, No. 12–283 (4th Cir. Sept. 13, 2012), ECF No. 6.

In the district court, Surratt had simultaneously filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 seeking the same Simmons -based relief. As a federal prisoner, however, Surratt cannot challenge his conviction and sentence under § 2241 unless 28 U.S.C. § 2255(e) —also called the “savings clause”—applies. The district court concluded that § 2255(e) did not in fact confer jurisdiction to consider Surratt's claim in a § 2241 petition, so it denied Surratt's petition.

Surratt now appeals from the judgment of the district court. We are not unsympathetic to his claim; like the dissent, we recognize the gravity of a life sentence. However, Congress has the power to define the scope of the writ of habeas corpus, and Congress has exercised that power here to narrowly limit the circumstances in which a § 2241 petition may be brought. Surratt's petition does not present one of the permitted circumstances. Accordingly, we agree that the district court lacked jurisdiction under § 2255(e) to consider Surratt's § 2241 petition and affirm the judgment below.

I.

In 2004, a grand jury indicted Surratt on several drug-related counts, including conspiracy to possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. The Government then filed a timely information indicating that it would seek enhanced penalties based on Surratt's criminal history. The Government's information identified four previous drug-related convictions, each in North Carolina: (1) a 1996 conviction for felony possession of cocaine; (2) a 1997 conviction for felony possession of cocaine; (3) a 1997 conviction for felony possession of cocaine and maintaining a place for storage or sale; and (4) a 1998 conviction for sale and delivery of cocaine. If two or more of these convictions constituted “felony drug offense[s],” then Surratt faced a mandatory term of life imprisonment without release. See 21 U.S.C. § 841(b)(1)(A).

Four months after his indictment, and despite the prospect of a life sentence, Surratt pleaded guilty to the conspiracy count. He acknowledged in his written plea agreement that the district court could not impose a sentence below any statutory minimum unless the United States sought a reduction for substantial assistance. He also waived any rights to further appeals, save in a few narrow circumstances. Surratt did not stipulate, however, to any prior felony drug convictions.

After Surratt's plea, but before his sentencing, we decided United States v. Harp, 406 F.3d 242 (4th Cir.2005), which held that a North Carolina drug conviction qualified as a “felony drug offense” if “the maximum aggravated sentence that [the state court] could [have] imposed for that crime upon a defendant with the worst possible criminal history” exceeded one year. Id. at 246. Under Harp, all Surratt's prior convictions constituted felony drug offenses. Therefore, unless Surratt offered substantial assistance to the Government, Surratt faced a mandatory life sentence.

The district court sentenced Surratt to life imprisonment in October 2005. Initially, the court expressed some misgivings about a life sentence and questioned whether a different sentence would apply had it been free to consider the factors listed in 18 U.S.C. § 3553(a). But the Government had declined to move for any substantial-assistance reduction, as it regarded Surratt's cooperation as “halfhearted ... at best.” J.A. 223. Consequently, the district court determined that it was “required” to impose the life sentence “because of [Surratt's] prior criminal history and his engagement in this drug trafficking and, for whatever reasons, his inability to render substantial assistance.” J.A. 222. We affirmed Surratt's sentence on appeal. United States v. Surratt, 215 Fed.Appx. 222, 224 (4th Cir.2007). Surratt did not raise any claim in his direct appeal as to his mandatory life sentence.

Surratt then moved for post-conviction relief under 28 U.S.C. § 2255 in April 2008. In that motion, Surratt claimed that he had received ineffective assistance of counsel during his initial plea and sentence, and further sought a sentence reduction based on an amended Sentencing Guideline. He did not challenge his mandatory minimum sentence. The district court denied and dismissed the motion. Surratt v. United States, Nos. 3:08cv181, 3:04cr250, 2011 WL 815714 (W.D.N.C. Feb. 25, 2011). We denied Surratt's request for a certificate of appealability. United States v. Surratt, 445 Fed.Appx. 640, 640 (4th Cir.2011).

More than three years after Surratt filed his first § 2255 motion, we decided Simmons. Overruling Harp, the Simmons en banc majority held that a prior North Carolina conviction will constitute a felony for purposes of an enhanced punishment only if the prior conviction was actually punishable for more than one year of imprisonment as to that defendant. 649 F.3d at 241. Surratt and the Government agree that only one of Surratt's prior convictions would qualify as a “felony drug offense” under Simmons.

Seeking to take advantage of Simmons, Surratt sought relief in both this Court and the district court in August 2012. He first asked this Court to permit him to file a second or successive § 2225 motion. Because Surratt's motion fell outside the statutorily enumerated exceptions permitting that type of motion, see 28 U.S.C. § 2255(h), we denied him permission to file. See In re Surratt, No. 12–283 (4th Cir. Sept. 13, 2012), ECF No. 6. On the same day that he filed that request, Surratt also moved in the district court to vacate his sentence under §§ 2241 and 2255, or for writ of coram nobis. Surratt maintained that, in light of Simmons, he was “innocent” of the career offender enhancement and was a victim of fundamental error. In particular, Surratt argued that he should not have been subject to a mandatory life sentence. The Government did not oppose Surratt's § 2241 request.

Despite the parties' agreement, the district court denied Surratt's motion. Surratt v. United States, Nos. 3:04–CR–250–19, 3:12–CV–513, 2014 WL 2013328 (W.D.N.C. May 16, 2014). Although it again expressed misgivings about Surratt's mandatory life sentence, the court determined that a federal prisoner may use § 2241 to seek relief that § 2225(h) would otherwise bar only when a substantive change in the law coming after an initial § 2255 petition rendered the prisoner's original offense conduct “non-criminal.” Id. at *1. Because Surratt challenged only his sentence, the court concluded that he could not establish that Simmons rendered any of his conduct “noncriminal.” Therefore, he could not obtain relief under § 2241.

Surratt appealed, arguing that the district court should have permitted him to proceed under § 2241. The Government agreed and also elected not to enforce the appeal waiver in Surratt's plea agreement. Therefore, in light of the Government's position, we appointed amicus curiae to defend the district court's judgment.

II.

In the...