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Criminal – Firearm ‘Use’ – Habeas Relief – Rule 48

The 4th Circuit orders vacatur of a South Carolina defendant’s conviction for use of a firearm under 18 U.S.C. § 924(c), as a 1995 high-court case undercuts his conviction for “use” of a firearm based on his allegedly having reached for a handgun when police arrested him in 1990.

In Bailey v. U.S., 516 U.S. 137 (1995), the Supreme Court held that the government must prove active employment of a firearm in order to convict under the “use” prong of § 924(c).

Five years after the high court decided Bailey, petitioner filed for habeas relief under 28 U.S.C. § 2255, which did not challenge his § 924 conviction. The district court dismissed the § 2255 motion as time-barred under the Antiterrorism & Effective Death Penalty Act. On April 9, 2008, petitioner filed in the district court the pro se habeas motion at issue in this appeal, asserting the Bailey decision rendered his § 924(c) conviction illegal. The government acknowledged the habeas motion was “properly brought” and agreed petitioner was entitled to relief on the merits because the conduct used as a basis for the conviction did not meet the Bailey definition of the offense. The district court denied relief.

Petitioner is not entitled to pursue habeas relief under 28 U.S.C. § 2241. Because the district court should have dismissed the habeas motion for lack of jurisdiction, we reverse on the habeas motion and remand. Under these circumstances, however, we are also obliged to construe petitioner’s appeal as a request for leave to file a second or successive § 2255 motion. Because Bailey did not establish a new rule of constitutional law, we are constrained to deny that request.

We conclude the district court had jurisdiction over the motion to vacate under Rule 48. We agree with the D.C. Circuit that Rule 48 is a claim-processing rule, which had to be invoked by a litigant in the district court in order to avoid forfeiture. Thus, the government (which made the motion to vacate) and petitioner (who urged the court to grant it) have each forfeited any right to contend that Rule 48 could not be used in this context.

Applying U.S. v. Smith, 55 F.3d 157 (4th Cir. 1995), we are constrained to reverse the denial of the motion to vacate and direct that it be granted. The sitting U.S. Attorney and the AUSA who successfully prosecuted petitioner were convinced that his conduct could not support a § 924(c) conviction. Substantial, reasonable doubt about the guilt of a defendant, arising after conviction, is evidence of good faith. In these circumstances, the district court could not deny the motion to vacate simply because it disagreed with petitioner and the government on the merits of the Bailey issue.

We conclude the district court lacked jurisdiction over the habeas corpus motion, decline to authorize the filing of a second or successive motion, reverse the denial of the government’s motion to vacate the § 924(c) conviction and remand for the conviction to be vacated.

Rice v. Rivera, Warden (Per Curiam) No. 08-8191, Sept. 7, 2010; USDC at Charleston, S.C. (Anderson) Stephen Rawson for appellant; Jeffrey M. Johnson, AUSA, for appellee. VLW 010-2-162, 17 pp.

VLW 010-2-162

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