United States v. Mills

• Decision Date: 08 December 2014
• Docket Number: No. 13–7358.,13–7358.
• Citation: 773 F.3d 563
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Thomas Andrew MILLS, Sr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

773 F.3d 563

UNITED STATES of America, Plaintiff–Appellee

v.Thomas Andrew MILLS, Sr., Defendant–Appellant.

No. 13–7358.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 17, 2014.

Decided: Dec. 8, 2014.

ON BRIEF:Benjamin M. Pickett, Moore & Van Allen PLLC, Charlotte, North Carolina; Adam H. Charnes, Richard D. Dietz, Kilpatrick Townsend & Stockton LLP, Winston–Salem, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May–Parker, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before MOTZ and FLOYD, Circuit Judges, and DAVIS, Senior Circuit Judge.

Opinion

Affirmed by published opinion.

Judge MOTZ wrote the majority opinion, in which Senior Judge DAVIS joined. Judge FLOYD wrote a separate opinion dissenting in part and concurring in the judgment.

DIANA GRIBBON MOTZ, Circuit Judge:

Thomas Andrew Mills, Sr. petitioned the district court for a certificate of actual innocence after his felon-in-possession conviction was vacated. A court may grant such a certificate, a prerequisite for recovering from the Government compensation for wrongful incarceration, only in those rare cases in which it finds a previously convicted defendant to be truly innocent. The district court determined that this is not such a case and denied Mills's petition. We affirm.

I.

On January 22, 2003, Mills sold a rifle and a shotgun, both of which had been stolen, to the owner of a pawn shop in North Carolina. Mills had a lengthy criminal history, including seven prior North Carolina felony convictions for breaking and entering and one conviction for larceny. A federal jury in the Eastern District of North Carolina convicted Mills of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and § 924 (2012). The district court sentenced Mills to 180 months' imprisonment.

Following our decision in United States v. Simmons, 649 F.3d 237 (4th Cir.2011) (en banc), Mills filed a 28 U.S.C. § 2241 motion for writ of habeas corpus. He argued that Simmons rendered his conviction for being a felon in possession in violation of § 922(g)(1) improper. The Government did not oppose the motion. Accordingly, on October 4, 2012, the district court granted Mills's § 2241 motion and vacated his conviction in light of Simmons. The court ruled that his seven prior North Carolina convictions, although felonies under state law, did not constitute felonies for purposes of 18 U.S.C. § 922(g)(1) because Mills could not have been imprisoned for more than one year for any of them.

On January 31, 2013, Mills moved for a certificate of actual innocence under 28 U.S.C. § 2513 (2012). A person must obtain such a certificate before recovering damages from the Government for unjust imprisonment under 28 U.S.C. § 1495 (2012). The Government moved to dismiss Mills's motion for a certificate of innocence, contending that Mills had failed to prove two of the three required predicates for such a certificate. The district court denied Mills's motion. United States v. Mills, 2013 WL 3864304 (E.D.N.C. July 24, 2013). Mills then filed this appeal.

II.

Section 2513, the “unjust convictions and imprisonment statute,” provides in pertinent part:

(a) Any person suing under section 1495 of this title must allege and prove that:

(1) His conviction has been reversed or set aside on the ground that he is not guilty of the offense of which he was convicted, or on new trial or rehearing he was found not guilty of such offense, as appears from the record or certificate of the court setting aside or reversing such conviction, or that he has been pardoned upon the stated ground of innocence and unjust conviction and

(2) He did not commit any of the acts charged or his acts, deeds, or omissions in connection with such charge constituted no offense against the United States, or any State, Territory or the District of Columbia, and he did not by misconduct or neglect cause or bring about his own prosecution.

The plain language of § 2513(a) thus requires a petitioner to both “allege and prove” three predicates. See United States v. Graham, 608 F.3d 164 (4th Cir.2010). First, the petitioner must establish that the record of the court setting aside or reversing his conviction demonstrates that the court did so on the ground that he is not guilty of the offense for which he was convicted. Second, the petitioner must prove that he did not commit any of the acts charged, or that those acts or related acts constituted no crime against the United States, or any State, Territory or the District of Columbia. Third, the petitioner must demonstrate that he did not by misconduct or neglect cause or bring about his own prosecution.

Although § 2513 has been in effect for many years, we have had the opportunity to examine it only once before. In Graham, we recognized that “Congress clearly did not provide in the unjust conviction and imprisonment act an avenue for monetary compensation to all whose criminal convictions are reversed after incarceration.” Id. at 171. Rather, the provisions of § 2513 work in tandem to ensure that only a truly innocent petitioner is eligible for a certificate of innocence and subsequent compensation from the Government. As the Seventh Circuit recently noted,

[m]any people believe that persons who spend time in prison without a valid conviction should be compensated. That is not, however, what § 1495 and § 2513 [the unjust conviction statutes] do. They compensate only persons who are actually innocent—whether because they did not do what the indictment charged or because what they did is not a crime.

Pulungan v. United States, 722 F.3d 983, 985 (7th Cir.2013).

A district court has “substantial discretion” when determining whether to grant or deny a certificate of innocence pursuant to 18 U.S.C. § 2513. Graham, 608 F.3d at 166. We affirm such a denial “unless the [district] court abused its discretion, or unless the findings underlying its decision were clearly erroneous.” Id. at 172 (quoting Betts v. United States, 10 F.3d 1278, 1283 (7th Cir.1993) ) (internal quotation marks omitted).

III.

In this case, the district court recognized that Mills satisfied the first predicate but denied the certificate of innocence on the ground that Mills failed to carry his “rigorous burden” with respect to the third predicate. Mills, 2013 WL 3864304 at *4. We may affirm, however, on the ground that Mills failed to establish any one of the three predicates. See, e.g., United States v. Moore, 709 F.3d 287, 293 (4th Cir.2013). Because we conclude that Mills did not satisfy the second § 2513 predicate, we do not reach the question of whether he also failed to satisfy the third.

The second predicate for a certificate of innocence mandates that a petitioner allege and prove that he “did not commit any of the acts charged or [that] his acts, deeds, or omissions in connection with such charge constituted no offense against the United States, or any State, Territory or the District of Columbia.”

28 U.S.C. § 2513(a)(2) (emphasis added).¹ Thus, Mills can satisfy the second predicate only by proving either (a) he did not commit any of the acts charged or (b) those acts, or related acts, constituted no crime against the United States, or any State, Territory or the District of Columbia.

The district court expressly found that Mills had not proved (b) because “[w]hile in hindsight defendant's acts do not constitute the federal offense of felon in possession of a firearm ... they did constitute an offense against the state of North Carolina.” Mills, 2013 WL 3864304, at *3. Mills does not argue to the contrary—and for good reason. The record unquestionably demonstrates that on January 22, 2003, Mills, who had multiple convictions for state felonies, nevertheless possessed two firearms. This possession violated North Carolina law barring those previously convicted of state felonies from possessing firearms. See N.C. Gen.Stat. § 14–415.1(a). Thus Mills cannot prove that the acts he committed on January 22, 2003 “constituted no offense against ... any State,” as required by the second part of the second predicate of § 2513(a)(2).

The district court, however, did not resolve the question of whether Mills established the first part of that predicate—that he “did not commit any of the acts charged.” Id. The court noted that “[t]o be sure, on 22 January 2003, defendant possessed both of the subject firearms, as charged,” but the court believed it was unclear whether the change in law worked by Simmons “now means he did not commit the acts charged.” Mills, 2013 WL 3864304, at *3.

The first part of the second § 2513 predicate plainly requires a petitioner to prove that he did not commit “any of the acts charged.” This means that when an indictment charges more than one act, if a petitioner commits any of the acts charged, he is not eligible for a certificate of innocence. With this understanding of the statute in mind, we turn to Mills's case.

IV.

Here, Mills concedes that he violated North Carolina law. The only question that remains is whether Mills committed “any of the acts charged.” Mills's own concession demonstrates that he undoubtedly possessed firearms on January 22, 2003, and thus committed at least one of the “acts charged.”

Mills maintains, to the contrary, that he has proved he did not commit “any of the acts charged.” Appellant's Br. 19. According to Mills, he thus “readily satisfie[s]” the first part of the second predicate. This argument rests on Mills's view that the only act the Government charged here was possession of a firearm while having been previously convicted of a crime punishable by more than one year in prison. In other words, Mills contends that the only way he could have committed “any of the acts charged” is if he satisfied all of the elements of § 922(g)(1).

This reading of the statute is clearly incorrect. Section 922(g) does not, as Mills would have it, criminalize the act of...