U.S. v. Lloyd

• Decision Date: 13 August 1999
• Docket Number: No. 98-7480,98-7480
• Citation: 188 F.3d 184
• Parties: (3rd Cir. 1999) UNITED STATES OF AMERICA, v. TROY LLOYD, Appellant
• Court: U.S. Court of Appeals — Third Circuit

Page 184

188 F.3d 184 (3rd Cir. 1999)

UNITED STATES OF AMERICA, v. TROY LLOYD, Appellant

No. 98-7480

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued April 27, 1999

Filed August 13, 1999

David M. Barasch, Esquire, United States Attorney, Theodore B. Smith, III, Esquire (ARGUED), Office of the United States Attorney, Harrisburg, PA, COUNSEL FOR APPELLEE.

Daniel I. Siegel, Esquire (ARGUED), James V. Wade, Esquire, Lori J. Ulrich, Esquire, Office of Federal Public Defender, Harrisburg, PA, COUNSEL FOR APPELLANT.

Before: MANSMANN, WEIS and GIBSON,^* Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this appeal we must first determine whether a petition filed pursuant to 28 U.S.C. 2255 (the Antiterrorism and Effective Death Penalty Act, hereinafter the "AEDPA"), challenging Appellant Lloyd's sentence under 18 U.S.C. 924(c)(1) as invalid in light of the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995), was within the AEDPA's statute of limitations. The District Court held Lloyd's petition to vacate his conviction was time-barred because it was filed more than one year from his date of conviction and the effective date of the AEDPA.

The District Court further held that Lloyd could not raise his Bailey claim on collateral review because he could not satisfy the requirements for excusing his procedural default on direct review. The District Court concluded, as necessary to its holding, that Lloyd could not prove he was actually innocent of a dismissed count, as required under Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998). We must therefore also consider whether Lloyd was required to demonstrate actual innocence of that count under Bousley.

Because we find that Lloyd's petition was timely under 2255(3) when filed within one year of the Supreme Court's determination in Bousley of retroactive applicability of the new right it earlier recognized in Bailey (and within one year of this Court's first retroactive application of that right), and because we also find that Lloyd was not required to demonstrate actual innocence of a foregone, less serious charge, we will reverse the decision of the District Court and remand for further proceedings.

I.

In April, 1992, Lloyd was charged in a two-count indictment with (1) using and carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. 924(c)(1), and (2) being a convicted felon in possession of a firearm in violation of 18 U.S.C. 922(g) and 924(a)(2). Pursuant to an August, 1992 plea agreement, Lloyd entered a conditional plea of guilty to Count I, the government dismissed Count II,¹ and Lloyd was subsequently sentenced to a mandatory term of five years imprisonment on Count I, consecutive to state terms he was serving at the time of sentencing.²

In December, 1995, the Supreme Court issued its opinion in Bailey, 516 U.S. at 144, holding that 924(c)(1)'s "use" prong requires the government to prove "active employment of the firearm."³ Because Bailey vacated a conviction on direct appeal, the Supreme Court did not address whether the issue could be raised on collateral review. During 1996 and 1997, however, the Courts of Appeals began to recognize the applicability of Bailey on collateral review.⁴ In January, 1998, Lloyd filed his petition pursuant to the AEDPA challenging his sentence in light of Bailey. In accordance with the government's suggestion, the District Court deferred ruling on the petition until the Supreme Court rendered its decision in Bousley. With its May, 1998 decision in Bousley, the Supreme Court recognized the right to raise a Bailey claim on collateral review. It also held, however, that a petitioner who has procedurally defaulted his claim by failing to raise it on direct review may only raise it collaterally if he can first demonstrate either cause and actual prejudice, or that he is actually innocent of the 924(c) conviction and any "more serious charges" dismissed in the plea bargaining process.

As noted above, the District Court then found that Lloyd's petition to vacate his conviction was time-barred because it was filed more than one year from his date of conviction and the effective date of the AEDPA and that Lloyd's Bailey claim was procedurally defaulted in any event because Lloyd could prove neither (a) cause and actual prejudice nor (b) that he was actually innocent of both the 924(c) conviction and the dismissed felon-in-possession charge, as required under Bousley. This appeal timely followed.

Our appellate jurisdiction is pursuant to 28 U.S.C. 1291 and 2253(a),⁵ and we exercise plenary review of the District Court's decision to deny Lloyd's 2255 motion. See United States v. Cleary, 46 F.3d 307, 309-10 (3d Cir. 1995), cert. den'd, U.S. , 116 S. Ct. 237 (1995).

II.

The Antiterrorism and Effective Death Penalty Act, 28 U.S.C. 2255, which became effective on April 24, 1996, requires a defendant to file a 2255 motion no more than one year after the latest of four specified events. It provides in relevant part:

A one-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of -

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

* * *

(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;

* * * *

The District Court concluded that subsection (3) did not apply because Bailey did not recognize a new right, but simply corrected a statutory interpretation.⁶ The District Court therefore held Lloyd's motion to be time-barred because it was filed several years after Lloyd's conviction became final⁷ and more than one year from the effective date of the AEDPA.

We find, however, that the one-year statute of limitations period is indeed determined in this case by application of subsection (3). In Bailey, the Supreme Court recognized for the first time, contrary to the law applied in this Circuit at the time of Lloyd's conviction, that "use" under 924(c)(1) requires active employment of a firearm. This amounted to recognition of a new right on the part of defendants whose conduct did not meet this test to be free from the associated penalties. That the right is founded on statutory interpretation rather than on a new rule of constitutional law is of no moment for purposes of the limitation period under 2255.⁸

In Bousley the Supreme Court resolved a split among the Circuits by holding that the right recognized in Bailey is retroactively applicable on collateral review. We recognize that the AEDPA's phrase "made retroactively applicable to cases on collateral review" is ambiguous, because it does not specify by whom the right must be made applicable. In interpreting this ambiguous limitations provisions we are mindful of the core purpose of collateral review to minimize the "risk that a defendant stands convicted of 'an act that the law does not make criminal.' " Bousley, 118 S. Ct. at 1610. Accordingly, we believe the statute should be interpreted in a manner that preserves a reasonable opportunity for assertion of newly recognized rights.⁹ We therefore reject the government's construction under which the period of limitations would commence when one of the lower federal courts applies a new right collaterally, or when the government concedes its retroactive applicability (or even when media accounts predict its retroactive applicability), because such a construction would not be reasonably calculated to assure notice of the availability of the right (especially to prisoners without legal counsel), and would not provide a clearly ascertainable starting point for the one year period.

We need not decide whether a right must be made applicable on collateral review by the Supreme Court in order to commence the limitations period,¹⁰ or whether its retroactive application by the Court of Appeals for the Circuit encompassing the District Court in which a prisoner was sentenced will suffice, because Lloyd's petition - filed not later than one year after the Supreme Court's May, 1998 Bousley decision and this Court's April, 1997 Davis decision - was timely under either rule.

III.

Bousley requires that in seeking post-conviction relief under Bailey a petitioner who did not raise his claim on direct appeal may excuse his default by proving his actual innocence of the 924(c) conviction and any "more serious charges" dismissed in the plea bargaining process.¹¹ Lloyd asserts his innocence of the 924(c) charge as interpreted in Bailey to require active employment of the firearm.¹² Moreover, our review of the Presentencing Report provisions for the respective counts leads us to conclude that the dismissed felon-in-possession count, which carried a sentencing guideline range of 27-33 months, was clearly not a "more serious charge" than the 924(c) count on which Lloyd was sentenced to a mandatory five year consecutive term.¹³ We therefore conclude that the District Court erred in its finding that Lloyd's Bailey claim was procedurally defaulted because Bousley requires Lloyd to demonstrate actual innocence of this dismissed count.

IV.

Because we find that Lloyd's 2255 petition is timely and that he has sufficiently alleged innocence of the offense of which he stands convicted, we will reverse the District Court's decision.

*. Honorable John R. Gibson, of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

1. The Presentence Report calculated a potential sentence of 27 to 33 months imprisonment on the dismissed count.

2. Lloyd currently continues to serve his state sentence at a State Correctional Institution in Cresson, Pennsylvania.

3. It appears that had this standard - rather than one requiring a showing of "close proximity" - been in effect at...