Conviction Vacated, Motion Not ‘Successive’

A defendant convicted of drug conspiracy gets another chance to challenge his sentence after a state court vacated one of the convictions that counted toward his criminal history category; the 4^th Circuit says the current motion under 28 U.S.C. § 2255 is not a successive motion, and reverses the district court decision.

One of defendant’s prior convictions detailed in his presentence report was from 1991, when he was convicted of “No Operator’s License” in North Carolina and sentenced to six months suspended imprisonment and three years’ probation. The district court adopted the PSR recommendation and sentenced defendant to 324 months, later reduced to 210 months, on the drug charge.
Within a year of his sentencing, defendant filed a § 2255 motion to vacate his sentence, which the district court denied. Also that year, defendant filed the first of several motions in North Carolina state court, seeking to vacate the No Operator’s License conviction. Eight years later, he succeeded and on Aug. 17, 2011, the state court vacated the conviction based on a finding that defendant was denied assistance of counsel.

Defendant then returned to federal court to seek resentencing. Without the vacated conviction, his guidelines range would be 188-235 months. The district court dismissed defendant’s § 2255 motion as an unauthorized second or successive motion pursuant to 28 U.S.C. § 2244(b)(3)(A).

On appeal, defendant argues his motion should not be considered within § 2255(h) at all, as it is not truly a “second or successive petition.” Other circuits have considered the question of whether a motion is second or successive when the grounds for challenging the movant’s sentence did not exist at the time he filed his first motion to vacate, specifically in the context of asking to reopen a federal sentence after the vacatur of a state sentence. Both the 10^th and 11^th Circuits have held that such motions are not second or successive. We are persuaded by the reasoning of these courts. Indeed, we have allowed a numerically second § 2255 petition where the claim arose at a resentencing hearing afforded to a movant as a result of his first § 2255 motion.

We hold that a numerically second § 2255 motion should not be considered second or successive pursuant to § 2255(h) where, as here, the facts relied on by the movant seeking resentencing did not exist when the numerically first motion was filed and adjudicated. Here, defendant’s claim was unripe at the time his numerically first motion was adjudicated. His motion was not successive.

Reversed and remanded.

U.S. v. Hairston (Davis) No. 12-8096, June 11, 2014; USDC at Statesville, N.C. (Voorhees) Stephanie D. Taylor for appellant; William M. Miller, AUSA, for appellee. VLW 014-2-112, 11 pp.