IN THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION CIVIL NO. 3:12CV701-RLV (3:07CR59) GORDON LEE MILLER, ) ) Petitioner, ) ) vs. ) ) UNITED STATES OF AMERICA, ) ) Response. ) ____________________________________) GOVERNMENT'S RESPONSE TO MOTION TO VACATE Petitioner Gordon Lee Miller moves this Court to vacate his conviction on the basis of the Fourth Circuit's en banc decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). Because the Government agrees that Petitioner is actually innocent of the ? 922(g)(1) conviction he challenges, the Government waives the statute of limitations in this case and agrees that this Court should vacate Petitioner's conviction. BACKGROUND Petitioner was indicted by the Grand Jury for the Western District of North Carolina on March 27, 2007, and charged with possession of a firearm by a convicted felon, in violation of 18 U.S.C. ? 922(g)(1). Indictment. Nearly a year later, Petitioner was convicted, following a jury trial, of this offense. Prior to sentencing the probation officer completed a Presentence Report ("PSR") in which the probation officer summarized Petitioner's criminal history, including his prior felony convictions. PSR at 7-9. Specifically, the probation officer reported a prior Case 3:12-cv-00701-RJC Document 4 Filed 12/05/12 Page 1 of 6 conviction for felony possession of cocaine for which Petitioner received a sentence of 6 to 8 months in prison and a conviction for threatening a legal officer, for which Petitioner also received a sentence of 6 to 8 months in prison. Id. at 7, 9. According to the judgments applicable to these convictions, both felony offenses were Class I felonies under the North Carolina Structured Sentencing Act, and Petitioner had a prior record level I when he was convicted of the first offense and a prior record level II when he was convicted of the second offense. Judgments attached to Pet. Mot. to Vacate. Petitioner was ultimately sentenced to 72 months in prison, to be followed by three years of supervised release. Petitioner did not appeal, but on October 23, 2012, Petitioner filed a motion to vacate his conviction under the Fourth Circuit's en banc Simmons decision under ? 2255, ? 2241, coram nobis, and audita querela, arguing that his prior felony convictions do not qualify as felony offenses for purposes of ? 922(g)(1) and that he is actually innocent, therefore, of the firearm offense of which he was convicted in this Court. ARGUMENT I. Although Petitioner's motion is untimely, the Government waives the statute of limitations in this case and recommends that this Court grant Petitioner's motion to vacate. Defendant's ? 2255 motion asserts that, in light of Simmons, he was erroneously convicted of being a felon-in-possession of a firearm based on a prior conviction that does not qualify based on a non-qualifying prior conviction. The petitioner's motion has merit and presents a cognizable claim for relief under ? 2255 but is not timely presented. 2 Case 3:12-cv-00701-RJC Document 4 Filed 12/05/12 Page 2 of 6 A. Waiver of the statute of limitations. Ordinarily, a ? 2255 motion must be filed within one year of "the date on which the judgment of conviction becomes final." 28 U.S.C. ? 2255(f)(1). A defendant may also file a ? 2255 motion within one year of "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." Id. ? 2255(f)(3). Defendant's ? 2255 motion was filed more than one year after the judgment against him became final, and "the right asserted" emanates from the Fourth Circuit's decision in Simmons, not a Supreme Court decision. After careful consideration, however, the Department of Justice has decided that, in this category of cases, in the interests of justice, it will waive reliance on the statute-of-limitations defense. Cf. Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002) (one-year statute of limitations for state prisoners "is not jurisdictional" but is instead "an affirmative defense that the state bears the burden of asserting"). The Supreme Court has explained that, while district courts (and appellate courts) have discretion sua sponte to raise a statute-of-limitations barrier to relief in a habeas case when the government had inadvertently failed to raise it, Wood v. Milyard, 132 S. Ct. 1826, 1834 (2012); Day v. McDonough, 547 U.S. 198, 209 (2006), when the government intentionally relinquishes the statute-of-limitations defense, the relinquishment constitutes a waiver that courts may not override. See Day, 547 U.S. at 202 ("[W]e would count it an abuse of discretion to override a State's deliberate waiver of a limitations defense."); id. at 210 n.11 ("Should [the government] intelligently choose to waive a statute of limitations defense, a district court would not be at liberty to disregard that choice."); Wood, 132 S. Ct. at 1835 (holding that 3 Case 3:12-cv-00701-RJC Document 4 Filed 12/05/12 Page 3 of 6 the State's deliberate decision not to contest the timeliness of a defendant's habeas petition "after expressing its clear and accurate understanding of the timeliness issue" constituted a deliberate waiver). Because of the United States' deliberate waiver of a statute of limitations defense, this court should reach the merits of Defendant's claim. B. Petitioner's Simmons claim has merit, and his motion to vacate should be granted. Section 922(g)(1) prohibits the possession of a firearm by any person who has been convicted of "a crime punishable for a term exceeding one year." 18 U.S.C. ? 922(g)(1). Interpreting nearly identical language, the Fourth Circuit held in Simmons, that an offense is punishable by more than one year in prison only if the defendant could have received a sentence of more than one year in prison, overturning its earlier decisions in United States v. Jones, 195 F.3d 205 (4th Cir. 1999), and United States v. Harp, 406 F.3d 242 (4th Cir. 2005), in which the Fourth Circuit had held that an offense is punishable by more than one year in prison as long as any defendant could receive a term of imprisonment of more than one year upon conviction for that offense. See Simmons, 649 F.3d at 247. Thus, for purposes of a qualifying predicate conviction under ? 922(g)(1), a predicate conviction is not "punishable for a term exceeding one year," unless the defendant could have received a sentence of more than one year in prison under the North Carolina Structured Sentencing Act. In this case, Petitioner's most serious prior conviction is a Class I felony with a prior record level of II. Under North Carolina General Statutes ? 15A-1340.17(c) and (d), the highest sentence Petitioner could have received for that conviction was 8 months. Under Simmons, then, that conviction was not for an offense punishable by more than one year in prison, and because Petitioner had no more serious prior convictions, he lacks a qualifying predicate conviction. 4 Case 3:12-cv-00701-RJC Document 4 Filed 12/05/12 Page 4 of 6 While all parties understood at the time of Petitioner's conviction that he did have an adequate predicate conviction under Harp and Jones, Simmons now makes clear that he did not and, because Petitioner was convicted for conduct that we now understand is not criminal under ? 922(g)(1), ? 2255 relief is warranted. CONCLUSION For these reasons, the Government waives the statute of limitations ordinarily applicable to motions to vacate filed under ? 2255 and recommends that this Court grant Petitioner's motion to vacate and that this Court vacate its October 22, 2008, judgment of conviction in this case. RESPECTFULLY SUBMITTED, this the 5th day of December, 2012. ANNE M. TOMPKINS UNITED STATES ATTORNEY s/Amy E. Ray Amy E. Ray Bar Number: 22762 Assistant United States Attorney Room 233, U.S. Courthouse 100 Otis Street Asheville, North Carolina 28801 Telephone: (828) 271-4661 Fax: (828) 271-4670 E-mail: Amy.Ray@usdoj.gov 5 Case 3:12-cv-00701-RJC Document 4 Filed 12/05/12 Page 5 of 6 CERTIFICATE OF SERVICE I certify, on this 5th day of December, 2012, that a copy of the foregoing Response to Petitioner's Motion to Vacate will be served upon Petitioner's counsel through electronic case filing. s/Amy E. Ray Assistant United States Attorney USAO Asheville, NC 6 Case 3:12-cv-00701-RJC Document 4 Filed 12/05/12 Page 6 of 6