Nelson v. U.S.

• Decision Date: 18 June 1999
• Docket Number: No. 98-3186,98-3186
• Citation: 184 F.3d 953
• Parties: (8th Cir. 1999) DANIEL ALAN NELSON, APPELLANT, v. UNITED STATES OF AMERICA, APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 953

184 F.3d 953 (8th Cir. 1999)

DANIEL ALAN NELSON, APPELLANT, v. UNITED STATES OF AMERICA, APPELLEE.

No. 98-3186

U.S. Court of Appeals, Eighth Circuit

Submitted: June 18, 1999

Filed: July 21, 1999

Appeal from the United States District Court for the District of Minnesota.

L. Marshall Smith, St. Paul, MN, argued, for Appellant.

Richard Newberry, Asst. U.S. Atty., Minneapolis, MN, argued, for Appellee.

Before Loken, Bright and Ross, Circuit Judges.

Bright, Circuit Judge.

I.

On September 11, 1991, a jury convicted Daniel Alan Nelson for possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5861(d) and 5871, and as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Upon these convictions, the district court imposed a mandatory sentence of 180 months (15 years) imprisonment. Nelson directly appealed his convictions to this court and we affirmed. United States v. Nelson, 984 F.2d 894 (8 th Cir. 1993), cert. denied, 508 U.S. 966 (1993). Subsequently, on September 9, 1997, Nelson filed a pro se motion for post conviction relief, under 28 U.S.C. § 2255, from his conviction as a felon in possession of a firearm. The district court¹ denied Nelson's petition, finding that it was time barred by provisions of the Antiterrorism and Effective Death Penalty Act. For the reasons which follow, we agree.

II.

Two events which affect this case occurred following the Conclusion of Nelson's direct appeal of his convictions. First, effective April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (" AEDPA") of 1996, Pub. L. No. 104- 132, Title I, § 105 (1996), which limits the time petitioners may bring § 2255 motions to one year, running from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) 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; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

The second event of importance on which Nelson relies is the Supreme Court's decision on January 7, 1997, in Old Chief v. United States, 519 U.S. 172 (1997). In Old Chief, the Supreme Court resolved a split of authority in the federal courts and ruled that evidence of prior felony convictions, used to support a charge under 18 U.S.C. § 922(g)(1), should not be heard by the jury where the defendant offers to stipulate to the existence of such convictions.

At his trial, Nelson offered to stipulate to prior felony convictions, but the district court nevertheless permitted the jury to hear testimony relating to his two prior felony convictions. Nelson did not, however, assert that ruling as error in his direct appeal.

Now, in the context of this proceeding, Nelson claims that Old Chief furnishes him a ground for relief from his conviction because it serves as a new rule of the Supreme Court. Further, he asserts that insofar as he brought this proceeding within one year of the Old Chief decision, his petition is timely.

Considering the provisions of the AEDPA, we observe that § 2255(3) restates, in two elements, the rule applicable to collateral relief from a conviction when the Supreme Court speaks. If the right is both newly recognized and operates retroactively, the Supreme Court's decision conferring that right may offer an avenue for § 2255 relief. In such a case, the statute of limitations for habeas corpus relief expires one year following the decision. But if the claim for relief is not founded on the new recognition of a right by the Supreme Court meant to be applied retroactively, the alleged right does not, in any event, afford a ground for relief regardless of time limitations in the AEDPA and, in addition, does not extend or change the time limitation already running.

Thus, we examine the rule in Old Chief and determine that Nelson's petition relying on that case does not establish a ground for relief. The retroactivity issue is governed by the test explained in Teague v. Lane, 489 U.S. 288, 305-10 (1989), and its progeny. Teague applies when the Supreme Court announces a new rule of criminal procedure. Essentially, if a decision announces a "new rule" of criminal procedure, it is not to be applied retroactively to convictions that have already become final when the decision is announced unless the new rule falls within one of two narrow exceptions. One exception is applicable when the new rule places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe, or otherwise prohibits...