F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        September 6, 2006
                           FO R TH E TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                           Clerk of Court

 U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,

 v.                                                       No. 05-2040
                                                (D.C. No. CIV-04-235-PJK/RH S)
 M ICH AEL A . HARR IS,                                    (D . N.M .)

              Defendant-Appellant.



                                       OR DER


Before O’BRIEN, PO RFILIO, and A ND ER SO N, Circuit Judges.




      On August 17, 2006, the United States filed a notice in this case stating that

it is prepared, in the interest of justice, to waive the statute of limitations bar

applied by the district court. In light of this new development, we will remand

this case to the district court for further proceedings.

      In 2000, M r. Harris w as convicted of possession with intent to distribute

cocaine base, within 1000 feet of a school, in violation of 21 U.S.C. § 860(a).

His sentence was enhanced to a life sentence based on two alleged prior felony

drug convictions. This court affirmed his conviction and sentence on direct

appeal. See United States v. Harris, 

(10th Cir. 2002).
      The Supreme Court denied certiorari on M arch 3, 2003. On M arch 2, 2004,

365 days later, M r. Harris filed a § 2255 motion in district court. He raised

claims of ineffective assistance of counsel and improper sentence enhancement. 1

In this § 2255 motion, he asserted that the district court had improperly enhanced

his conviction based on a 1989 conviction for possession with intent to distribute

cocaine from the Northern District of Texas, and a 1987 conviction in Los

Angeles Superior Court for possession of cocaine. He asserted that the California

conviction was infirm since it was a misdemeanor that had been reclassified as a

felony when his probation was revoked, since he was not represented by counsel,

and since he had not knowingly, intelligently, or voluntarily waived his right to

counsel.

      M r. Harris was, however, mistaken on a key point. The enhancement was

not based on the 1987 California conviction. It was actually based on the 1989

Northern District of Texas conviction, and a 1999 California state conviction for

possession of a narcotic controlled substance. After the United States pointed this

out in its M ay 26, 2004, response to his petition, M r. Harris quickly moved to

amend his petition to assert that the 1999 California conviction should not have




1
       In this appeal, M r. Harris has only briefed issues pertaining to the use of
the 1999 conviction to enhance his sentence. He has abandoned, for purposes of
appeal, his contentions concerning the 1989 conviction and his other ineffective
assistance of counsel claim.

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been used to enhance his sentence. 2 He now asserted that the 1999 conviction

was not final at the time he was sentenced in the present case. He also argued

that his trial and appellate counsel had been ineffective in failing to raise this

issue at sentencing and on direct appeal.

      The United States objected to the amendment. It asserted that the

amendment was untimely because M r. Harris had made his motion for leave to

amend outside the one-year statute of limitations for filing § 2255 motions. See

28 U.S.C. § 2255 (establishing one-year statute of limitations). M r. Harris was

appointed counsel, who argued that his “new” claim, about the 1999 conviction,

should relate back under Fed. R. Civ. P. 15(c) to the filing date of his § 2255

motion. In its order denying § 2255 relief, however, the district court determined

that the new claim did not relate back to the filing of the motion and was

therefore untimely; that equitable tolling should not be applied; and that the claim

concerning the 1999 California conviction would fail on the merits in any event.

      M r. H arris appealed, and we granted him a certificate of appealability.

In its appellate brief, the United States conceded that the district court “appears to

have erred . . . in concluding that Harris’s life sentence was legal,” Aplee. Br. at

3, because “[i]t appears that the [1999] California drug conviction should not

have been used to adjust Harris’s sentence,” 

The United States asked this



2
     His pro se motion seeking amendment was captioned “M otion 28 USC 2255
EXPA NSION OF THE RECORD.” R., doc. 11.

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court to abate the case until the Supreme Court determined whether it could waive

the § 2255 one-year statute of limitations.

      The Supreme Court subsequently held in Day v. M cDonough, 

, 1681-82 (2006), that the § 2255 statute of limitations is not jurisdictional, a

holding permitting waiver by the government. In light of this holding, the United

States indicated that it might reconsider its position concerning the statute of

limitations. If M r. Harris could establish to the United States’ satisfaction that he

did not have two predicate felony drug convictions, the United States would be

willing to waive the one-year statute of limitations, in the interest of justice.

      In particular, the United States was concerned that M r. Harris might have

yet another drug conviction, from 1988, that could have been used for purposes of

enhancement. In its most recent filing, however, the United States has informed

us that M r. Harris’s 1988 drug conviction was vacated in a state collateral

proceeding. To the United States’ best knowledge, therefore, he does not have

two prior drug convictions. The United States now states that it is prepared to

waive the statute of limitations defense. Presumably, it may also concede on

remand that M r. Harris’s sentence should not have been enhanced to a life

sentence because he does not have two prior felony drug convictions.

      It is therefore ORDERED as follow s:

      This case is REM ANDED to permit the United States to present to the

district court its waiver of the statute of limitations and its position on whether

                                          -4-
M r. Harris’s sentence was improperly enhanced based on an ineligible 1999

conviction, and for reconsideration of the denial of M r. Harris’s § 2255 motion

and of his motion for leave to amend his petition, in light of the United States’

presentation and argument and the ramifications thereof.


                                               Entered for the Court
                                               ELISABETH A. SHUM AKER, Clerk


                                               By:
                                                 Deputy Clerk




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