Rice v. Rivera

Decision Date07 September 2010
Docket NumberNo. 08-8191,09-6001.,08-8191
Citation617 F.3d 802
PartiesTimothy A. RICE, Petitioner-Appellant,v.M.L. RIVERA, Warden, Respondent-Appellee.Timothy A. Rice, Petitioner-Appellant,v.M.L. Rivera, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Fourth Circuit


ARGUED: Stephen Rawson, Duke University School of Law, Durham, North Carolina, for Appellant. Jeffrey Mikell Johnson, Office of the United States Attorney, Columbia, South Carolina, for Appellee. ON BRIEF: James E. Coleman, Jr., Sean E. Andrussier, Michael Gilles, Brian Kappel, James McKell, Duke University School of Law, Durham, North Carolina, for Appellant. W. Walter Wilkins, United States Attorney, Robert F. Daley, Jr., Assistant United States Attorney, Office of the United States Attorney, Columbia, South Carolina, for Appellee.

Before MICHAEL, MOTZ, and KING, Circuit Judges.

Reversed and remanded with directions; authorization denied by published per curiam opinion.



In 1990, appellant Timothy Rice was convicted in the District of South Carolina of using a firearm during and in relation to a drug trafficking offense, in contravention of 18 U.S.C. § 924(c). In 2008, Rice sought habeas corpus relief, maintaining that his § 924(c) conviction had been rendered illegal by the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which circumscribed what it means to “use” a firearm in violation of § 924(c). In the district court, the Government agreed with Rice's Bailey contention, explaining in its answer to his habeas corpus motion that the conduct underlying his § 924(c) conviction failed to satisfy Bailey's definition of that offense. Independently of its answer to the habeas motion, the Government moved the court to vacate Rice's § 924(c) conviction. The district court, however, declined to award any relief to Rice. See Rice v. Rivera, No. 2:08-cv-1390, 2008 WL 4414721 (D.S.C. Sept. 24, 2008) (the District Court Opinion). 1 Rice has appealed the denial of both motions. As explained below, we conclude that the district court lacked jurisdiction over Rice's habeas corpus motion, decline to authorize the filing of a second or successive habeas motion, reverse the denial of the Government's motion to vacate the § 924(c) conviction, and remand for the conviction to be vacated.


On July 26, 1990, a federal grand jury in South Carolina indicted Rice on five drug-related offenses, including the 18 U.S.C. § 924(c) offense underlying these proceedings. The evidence concerning Rice's § 924(c) charge is easily summarized. Upon the execution of a search warrant at Rice's home in Spartanburg, South Carolina, on May 3, 1990, the police found Rice in his bedroom. The officer who testified on the § 924(c) charge in the 1990 trial related that, when the police entered the bedroom, Rice was lying on the bed and “reached over to a table over next to his bed and there was a nine millimeter handgun laying on the table.” J.A. 35. The officer advised Rice that he would “kill him if he didn't ... reach back from the gun.” Id. In response, Rice “rolled back in the bed and laid down,” submitting to arrest without further incident. Id. Rice also testified, denying that he had reached for the gun.

The district court instructed the jury on the § 924(c) offense in a manner consistent with this Court's then-existing precedent that “constructive possession of a firearm in connection with a drug trafficking offense was sufficient to establish ‘use.’ In re Jones, 226 F.3d 328, 330 (4th Cir.2000). Specifically, the court instructed that [t]he phrase ‘used a firearm’ means having a firearm available to aid in the commission of the drug trafficking crimes.” J.A. 42. The instructions also explained that [a] firearm can be considered used in relation to a felony involving drug trafficking if the person possessing it intended to use the gun as a contingency arose”-[f]or example, to protect himself or to make escape possible.” Id. On October 17, 1990, the jury found Rice guilty of the § 924(c) offense, as well as the four other charges.2

In 1995, three years after Rice's convictions and sentence were affirmed on direct review by this Court, the Supreme Court decided Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which narrowed the meaning of “use” in § 924(c). The Bailey decision rejected our previous conclusion that mere possession of a firearm in connection with a drug trafficking offense could constitute “use.” See 516 U.S. at 143, 116 S.Ct. 501. Instead, the Court held “that the Government must prove active employment of a firearm in order to convict under the ‘use’ prong of § 924(c).” Jones, 226 F.3d at 330 (emphasis added) (citing Bailey, 516 U.S. at 143, 116 S.Ct. 501).

On July 6, 2001, more than five years after Bailey was decided, Rice filed a pro se habeas motion under 28 U.S.C. § 2255. The district court dismissed the § 2255 motion-which did not challenge Rice's § 924(c) conviction-as time-barred under the Antiterrorism and Effective Death Penalty Act. Rice then sought but was denied a certificate of appealability.

On April 9, 2008, Rice filed in the district court the pro se habeas motion at issue in this appeal (the “Habeas Motion”), asserting that the Bailey decision rendered his § 924(c) conviction illegal. The Habeas Motion was filed pursuant to 28 U.S.C. § 2241, even though [t]hose convicted in federal court are required to bring collateral attacks challenging the validity of their judgment and sentence by filing a motion to vacate sentence pursuant to [§ 2255].” In re Vial, 115 F.3d 1192, 1194 (4th Cir.1997) (en banc).

On July 7, 2008, the Government filed its answer to the Habeas Motion (the “Answer”). Despite noting a potential jurisdictional challenge to Rice's use of § 2241, the Answer acknowledged that the Habeas Motion was “properly brought.” J.A. 27, 31. It also agreed with Rice that relief should be granted on the merits, specifying that the § 924(c) conviction “must be vacated” because the conduct “that was used as a basis for such conviction does not meet the definition of the offense as set forth in Bailey. Id. at 27.

Two days later, on July 9, 2008, the Government went one step further on Rice's behalf, independently moving the district court to vacate Rice's § 924(c) conviction (the Motion to Vacate). Incorporating the analysis of the Answer, the Motion to Vacate informed the court that [t]he United States agrees that Petitioner is entitled to have his conviction ... vacated.” J.A. 49. Accordingly, the Government moved the district court “to vacate the conviction of Timothy A. Rice ... as to Count Five of Indictment Number 90-310, which count charges a violation of 18 U.S.C. § 924(c).” Id. at 49-50. The Motion to Vacate was filed by the United States Attorney and signed by the same Assistant United States Attorney who had successfully prosecuted Rice in 1990.

Rice's Habeas Motion and the Government's Motion to Vacate were submitted to a magistrate judge, who issued a report and recommendation to the district court. Explaining that the parties agreed that “the facts and evidence do not support a conviction under § 924(c),” the magistrate judge recommended awarding relief on the Habeas Motion, and did not address the separate Motion to Vacate. J.A. 52 (internal quotation marks omitted). On September 24, 2008, the court declined to adopt the magistrate judge's recommendation and denied both the Habeas Motion and the Motion to Vacate. See District Court Opinion 13-14. Although the court believed that it possessed jurisdiction to consider the Habeas Motion under § 2241, it disagreed with both Rice and the Government on the application of Bailey to the § 924(c) conviction. As a result, the court ruled “that there is a factual basis for which to sustain the conviction,” and denied the Habeas Motion. Id. at 13. Additionally, the court summarily denied the Motion to Vacate, stating only that “the facts and evidence [are] sufficient to sustain a conviction.” See id. at 14.

Thereafter, Rice filed a timely notice of appeal. On appeal, the Government has become somewhat of a moving target, altering its earlier position in two important respects. First, the Government now asserts that there is no jurisdictional basis for the Habeas Motion, contending that it is simply an unauthorized second or successive § 2255 motion. Second, contradicting the position espoused in its Answer and subsequent Motion to Vacate, the Government now agrees with the district court on the merits of the Bailey issue. It has not, however, reneged on or sought to withdraw its Motion to Vacate.


In resolving this appeal, we first assess the habeas corpus aspect of these proceedings, including whether jurisdiction exists over the Habeas Motion. As noted, the Government now challenges Rice's ability to seek habeas corpus relief under 28 U.S.C. § 2241, contending that jurisdiction was lacking in the district court and that the Habeas Motion should have been dismissed as a second or successive motion under 28 U.S.C. § 2255. Although such reversals of position are distasteful occurrences, and the Government's change of position is not to be encouraged, its about- face is irrelevant to our resolution of the jurisdictional issue. In short, [e]very federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review.” United States v. Poole, 531 F.3d 263, 270 (4th Cir.2008) (internal quotation marks omitted).

As a threshold matter, it is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255. See In re Vial, 115 F.3d 1192, 1194 (4th Cir.1997) (en banc). It is only when § 2255 proves inadequate or ineffective to test the legality of detention,”...

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