U.S. v. Thomas

• Decision Date: 29 December 2010
• Docket Number: No. 08-8436,08-8436
• Citation: 627 F.3d 534
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Danny Keith THOMAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

627 F.3d 534

UNITED STATES of America, Plaintiff-Appellee,

v.Danny Keith THOMAS, Defendant-Appellant.

No. 08-8436.

United States Court of Appeals,Fourth Circuit.

Argued: Sept. 24, 2010.

Decided: Dec. 29, 2010.

ARGUED: John Byron, Wake Forest University, School of Law, Winston-Salem, North Carolina, for Appellant. Amy Elizabeth Ray, Office of the United States Attorney, Asheville, North Carolina, for Appellee. ON BRIEF: John J. Korzen, Director, Caroline B. Payseur, Wake Forest University, School of Law, Appellate Advocacy Clinic, Winston-Salem, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Charlotte, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, KING, Circuit Judge, and JEROME B. FRIEDMAN, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge KING and Senior Judge FRIEDMAN joined.

OPINION

TRAXLER, Chief Judge:

Danny Keith Thomas appeals an order of the district court dismissing as untimely his pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C.A. § 2255 (West Supp.2010). For the following reasons, we vacate the district court's order and remand the motion for further proceedings.

I.

On November 7, 2005, Thomas pleaded guilty pursuant to a plea agreement to attempted possession of methamphetamine, in violation of 21 U.S.C.A. §§ 841(a)(1) and (b)(1)(C) (West 1999 & Supp.2010), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.A. § 924(c) (West 2000 & Supp.2010). He was sentenced to 30 months imprisonment on the methamphetamine charge, and 60 months imprisonment on the firearm charge, to be served consecutively. Judgment was entered on August 30, 2006, and no appeal was taken.

On October 10, 2008, Thomas filed a pro se motion under 28 U.S.C.A. § 2255, seeking to vacate his § 924(c) firearm conviction and correct his sentence. Thomas acknowledged that the motion would be barred under the general one-year limitations period of § 2255, see 28 U.S.C.A. § 2255(f)(1), but asserted that his motion was timely under the alternative limitations period set forth in 28 U.S.C.A. § 2255(f)(3), because he was filing it within one year of the Supreme Court's decision in Watson v. United States, which held that "a person does not 'use' a firearm under § 924(c)(1)(A) when he receives it in trade for drugs." 552 U.S. 74, 83, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007).

Prior to receiving a response from the government, the district court dismissed the petition as untimely under § 2255(f)(1) and rejected Thomas's claim that his motion was timely under § 2255(f)(3). The district court held that Watson did not announce a new rule of constitutional law and, in any event, the Supreme Court had not made the holding in Watson retroactively applicable to cases on collateral review. We subsequently appointed counsel to represent Thomas and granted a certificate of appealability to consider the issue of whether Watson announced a new rule of law that applies retroactively to cases on collateral review for purposes of § 2255(f)(3).

On appeal, the government agrees with Thomas that the Supreme Court recognized a new rule in Watson and that it is retroactively applicable to cases on collateral review. However, the government contends that we should affirm the district court's decision because Thomas procedurally defaulted his Watson claim by failing to raise it on direct appeal and cannot establish cause and prejudice, or actual innocence, to excuse his default.

II.

A.

Under 28 U.S.C.A. § 2255, federal prisoners "claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States" may move the district "court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C.A. § 2255(a). Section 2255(f) imposes a one-year limitations period upon the filing of § 2255 motions, which usually runs from "the date on which the judgment of conviction becomes final." 28 U.S.C.A. § 2255(f)(1). Section 2255(f)(3), however, provides that the one-year limitationsperiod begins to run from "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." 28 U.S.C.A. § 2255(f)(3).

Although acknowledging that his § 2255 motion would be untimely under § 2255(f)(1) because it was filed more than one year after his judgment of conviction became final, Thomas asserts that his § 2255 motion is timely under § 2255(f)(3), because it was filed within one year of the Supreme Court's decision in Watson, see Dodd v. United States, 545 U.S. 353, 357-58, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005) (holding that the one-year limitations period runs "from the date on which the right ... was initially recognized by th[e] [Supreme] Court"), which he also contends we should apply retroactively to his motion. The government agrees. However, the district court rejected the claim, apparently of the view that a prisoner may not take advantage of § 2255(f)(3) unless the Supreme Court has made a new rule of constitutional law retroactively applicable to cases on collateral review.

In United States v. Sanders, 247 F.3d 139 (4th Cir.2001), we "assume[d], without deciding, that a circuit court can declare a new rule retroactive on collateral review in an initial § 2255 petition." Id. at 146 n. 4. In doing so, we noted the contrast in the statutory language governing retroactivity for purposes of § 2255(f)(3) and the statutory language governing retroactivity for the purposes of filing a "second or successive" motion in § 2255(h). Id. Unlike in the former, which references a " right [that] has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review," 28 U.S.C.A. § 2255(f)(3) (emphasis added), the latter specifically provides that "[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain ... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," 28 U.S.C.A. § 2255(h)(2) (emphasis added). ¹ We also noted, however, that "the language of subsection [ (f) ](3) can also be read to require the Supreme Court to make the decision on retroactivity before a petitioner may file an initial § 2255 motion." Sanders, 247 F.3d at 146 n. 4; but see Dodd, 545 U.S. at 365-366 n. 4, 125 S.Ct. 2478 (Stevens, J., dissenting) (noting but disagreeing with the assumption made by the majority in Dodd and "every Circuit to have addressed the issue," "that the decision to make a new rule retroactive for purposes of this section can be made by any lower court," rather than " only [by] the Supreme Court " (first emphasis added)).

We now join those circuits that have considered the issue and hold that § 2255(f)(3) does not require that the initial retroactivity question be decided in the affirmative only by the Supreme Court. See Wiegand v. United States, 380 F.3d 890, 892 (6th Cir.2004) (holding that "any federal court can make the retroactivity decision" for purposes of § 2255(f)(3));Dodd v. United States, 365 F.3d 1273, 1278 (11th Cir.2004) (noting that "every circuit to consider this issue has held that a court other than the Supreme Court can make the retroactivity decision for purposes of § 2255[ (f) ](3)"), aff'd 545 U.S. 353, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005); United States v. Swinton, 333 F.3d 481, 486, 487 (3d Cir.2003) (concluding that "the statute of limitations provision of § 2255 allows district courts and courts of appeals to make retroactivity decisions" and that this "may be essential to put the question before the Supreme Court for final resolution"); Fischer v. United States, 285 F.3d 596, 599-600 (7th Cir.2002) (noting that "district and appellate courts, no less than the Supreme Court, may issue opinions holding that a decision applies retroactively to cases on collateral review" (internal quotation marks and alteration omitted)); United States v. Lopez, 248 F.3d 427, 432 (5th Cir.2001) (holding that section 2255(f)(3) "does not require that the retroactivity determination must be made by the Supreme Court itself").

B.

Having determined that § 2255(f)(3) allows us to make the initial determination of retroactivity, we turn to the question of whether the decision in Watson announced a new rule of law that applies retroactively to cases on collateral review.

Generally speaking, when the Supreme Court announces "a 'new rule,' that rule applies to all criminal cases still pending on direct review." Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). Where a conviction is "already final, however, the rule applies only in limited circumstances." Schriro, 542 U.S. at 351, 124 S.Ct. 2519. New procedural rules apply retroactively to cases on collateral review only if they fall within the "small set of watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Id. at 352, 124 S.Ct. 2519 (internal quotation marks omitted); see also Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). This is because such rules "regulate only the manner of determining the defendant's culpability." Schriro, 542 U.S. at 353, 124 S.Ct. 2519. "They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Id. at 352, 124 S.Ct. 2519.

"New substantive rules," in contrast, "generally apply retroactively. ...