Filed: Jul. 14, 2014
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7675 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TORRANCE JONES, a/k/a Tube, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:96-cr-00079-BO-1; 5:12-cv-00121-BO) Argued: March 18, 2014 Decided: July 14, 2014 Before NIEMEYER, KING, and AGEE, Circuit Judges. Affirmed by published opinion. Judge Niemeyer wrote
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7675 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TORRANCE JONES, a/k/a Tube, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:96-cr-00079-BO-1; 5:12-cv-00121-BO) Argued: March 18, 2014 Decided: July 14, 2014 Before NIEMEYER, KING, and AGEE, Circuit Judges. Affirmed by published opinion. Judge Niemeyer wrote t..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7675
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TORRANCE JONES, a/k/a Tube,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:96-cr-00079-BO-1; 5:12-cv-00121-BO)
Argued: March 18, 2014 Decided: July 14, 2014
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Agee joined. Judge King wrote a
separate opinion dissenting in part and concurring in the
judgment in part.
ARGUED: Coreen Mao, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant. Shailika K. Shah,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: Stephen L. Braga, Kevin Cope, Benjamin
Hayes, Third Year Law Student, Caroline Schmidt, Third Year Law
Student, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Charlottesville, Virginia, 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.
2
NIEMEYER, Circuit Judge:
Torrance Jones was convicted in 1996 on federal cocaine
trafficking charges and sentenced to 360 months’ imprisonment.
His sentence was enhanced by, among other things, two prior
Florida state court convictions. Following his sentencing and
appeal, Jones filed a motion under 28 U.S.C. § 2255 in October
2000 for post-conviction relief, which the district court
denied. We dismissed Jones’s subsequent appeal.
Thereafter, Jones challenged his two Florida state
convictions and obtained vacaturs of both, one in 2004 and the
other in 2008. He then filed two motions in federal court under
28 U.S.C. § 2241 and Federal Rule of Civil Procedure 60(b)(5),
challenging the sentence imposed for his 1996 federal conviction
because his Florida state convictions had been vacated. The
district court treated his motions as § 2255 motions and denied
them as successive.
Finally, in March 2012, Jones filed the instant § 2255
motion, arguing that it was not successive because he had
obtained the vacaturs of the Florida convictions after he had
filed his first § 2255 motion. The district court, however,
denied this § 2255 motion as untimely under 28 U.S.C. §
2255(f)(4) because it was not filed within one year after Jones
learned of his Florida state vacaturs.
3
Jones now argues on appeal that his failure to meet the
requirements of § 2255(f)(4) should not bar his § 2255 motion
because the vacaturs of his state convictions rendered him
“actually innocent of his sentence.” In making this argument,
he relies on the recent Supreme Court decision in McQuiggin v.
Perkins, 133 S. Ct. 1924, 1928 (2013), which held that a
defendant who demonstrates actual innocence of his crime of
conviction may, in extraordinary circumstances, proceed with a
habeas petition that otherwise would have been statutorily time-
barred under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”). Jones asks that we extend McQuiggin’s
holding to provide relief to defendants who demonstrate actual
innocence of their sentences, thus providing Jones an avenue to
bypass § 2255(f)(4)’s 1-year statute of limitations. We decline
to do so and affirm the judgment of the district court. 1
I
Jones’s 1996 conviction resulted from his involvement in a
substantial cocaine distribution conspiracy. He was convicted
in the Eastern District of North Carolina on one count of
conspiracy to possess with intent to distribute cocaine and
1
Because we hold that Jones’s § 2255 motion is time-barred
by § 2255(f)(4), we do not reach the question raised by the
government of whether it was successive and therefore also
barred under 28 U.S.C. § 2255(h).
4
cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1),
and two counts of possession with intent to distribute cocaine,
in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. During
sentencing, the district court found that Jones maintained a
managerial role in the offenses and was accountable for
trafficking in 79 kilograms of cocaine and 26.3 kilograms of
cocaine base, which, under the Sentencing Guidelines, resulted
in an offense level of 40. The court found that Jones’s
criminal record established a criminal history category of III,
based on a juvenile adjudication and two Florida state court
convictions -- one in 1990 for misdemeanor possession of
marijuana and one in 1994 for carrying a concealed firearm,
loitering or prowling, and possession of burglary tools. The
offense level and criminal history category resulted in an
advisory Guidelines sentencing range of 360 months’ to life
imprisonment. The court sentenced Jones to 360 months’
imprisonment. On direct appeal, we affirmed. United States v.
Jones, No. 97-4107, 1998 WL 761542 (4th Cir. Nov. 2, 1998) (per
curiam), cert. denied,
528 U.S. 853 (1999).
Jones filed a § 2255 motion for post-conviction relief in
October 2000, alleging eight grounds for relief, primarily based
on ineffective assistance of counsel. The district court denied
Jones’s motion, and we dismissed his subsequent appeal. United
5
States v. Jones, 35 F. App’x 382, 383 (4th Cir. 2002) (per
curiam).
Following Jones’s unsuccessful § 2255 motion, he
successfully obtained orders from Florida state courts vacating
his two prior convictions. The 1990 marijuana conviction was
vacated on February 18, 2004, and the 1994 firearm conviction
was vacated on November 7, 2008.
Jones thereafter filed two pro se motions to obtain relief
from his 1996 federal drug trafficking sentence based on the
vacaturs of his two Florida convictions. On November 6, 2009,
he filed a motion under 28 U.S.C. § 2241, and on November 17,
2009, he filed a motion under Federal Rule of Civil Procedure
60(b)(5). The district court treated both as motions under §
2255 and dismissed them as successive. We thereafter denied
Jones’s requests for a certificate of appealability and for
authorization to file a successive § 2255 motion. United States
v. Jones, 403 F. App’x 856, 857 (4th Cir. 2010) (per curiam).
Finally, in March 2012, Jones filed the instant § 2255
motion, again contending that he should be resentenced in light
of the vacaturs of his two prior Florida state convictions. He
argued that this motion should not be dismissed as successive
because his prior state convictions were vacated after he had
filed his original § 2255 motion in October 2000. Therefore, he
6
argued, his October 2000 motion could not have raised the issue
of the effect of his vacaturs.
The district court did not rule on whether Jones’s § 2255
motion was successive but, instead, dismissed it as untimely
under 28 U.S.C. § 2255(f)(4), which provides for a 1-year
limitation period, running from “the date on which the facts
supporting the claim or claims could have been discovered
through the exercise of due diligence.” The court pointed out
that the facts giving rise to Jones’s § 2255 motion first became
known to him no later than when he received notice of the latter
of the two vacaturs on November 7, 2008. Consequently, his §
2255 motion filed in March 2012 was untimely. Finding no
extraordinary circumstances that would justify equitable tolling
or that would allow Jones to benefit from the filing date of his
timely but previously dismissed § 2241 motion (filed on November
6, 2009), the court dismissed the § 2255 motion. It did,
however, grant Jones a certificate of appealability on the issue
of whether his instant motion was timely filed.
Jones filed this appeal and now argues that McQuiggin v.
Perkins, which was decided after the district court’s order,
should provide him with relief from the 1-year limitation period
in § 2255(f)(4), as he is actually innocent of his sentence.
7
II
As noted, the two Florida state convictions that were used,
in part, to enhance Jones’s 1996 federal sentence were vacated
in 2004 and 2008, respectively. Thus, his § 2255 motion based
on those vacaturs and filed in 2012 was not filed within one
year of when he learned of the vacaturs, and therefore it failed
to comply with § 2255(f)(4). 2 As the Supreme Court has noted, in
the context of a § 2255 challenge made “on the ground that a
state conviction used to enhance [a federal] sentence has since
been vacated,” the 1-year limitation period “begins when a
petitioner receives notice of the order vacating the prior
conviction, provided that he sought it with due diligence in
state court.” Johnson v. United States, 544 U.S. 295, 298
(2005); see also United States v. Gadsen,
332 F.3d 224, 227-29
(4th Cir. 2003).
Jones contends that because “he is innocent of his current
federal sentence,” we should exercise “the traditional,
equitable power of federal courts” and grant him relief from the
bar of § 2255(f)(4). He relies on the Supreme Court’s recent
2
Section 2255 authorizes the court that imposed a federal
sentence “to vacate, set aside or correct the sentence,” 28
U.S.C. § 2255(a), and § 2255(f) imposes a “1-year period of
limitation” for filing the motion, which “shall run from the
latest of [several stated dates, one of which is] the date on
which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence,” id.
§ 2255(f)(4).
8
decision in McQuiggin, which held that, in extraordinary
circumstances, a defendant who demonstrates actual innocence of
his crime of conviction may proceed with a habeas petition that
otherwise would have been statutorily time-barred under AEDPA.
Thus, he asks us to apply a rule providing for relief based on
actual innocence of a crime of conviction to a situation where
he is actually innocent of a federal sentence. His claim for
relief is grounded on the fact that his sentencing range --
without the enhancements caused by the two Florida
convictions -- would have been 292 to 365 months’ imprisonment,
whereas the range that the district used in sentencing him was
360 months’ to life imprisonment.
In response, the government argues that McQuiggin is
inapposite because Jones “has not even attempted to claim that
he is actually innocent of the [federal] charge for which he was
convicted. Rather, he attempts to use the term ‘actual
innocence’ to assert that his criminal history category was
improperly calculated.”
It is true that the Supreme Court has recognized a limited
“actual innocence” exception to certain procedural bars to
habeas review. Under the exception, “in an extraordinary case,
where a constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal habeas
court may grant the writ [of habeas corpus] even in the absence
9
of a showing of cause for the procedural default.” Murray v.
Carrier, 477 U.S. 478, 496 (1986) (emphasis added); see also
McQuiggin, 133 S. Ct. at 1931 (“In other words, a credible
showing of actual innocence may allow a prisoner to pursue his
constitutional claims . . . on the merits notwithstanding the
existence of a procedural bar to relief”); Bousley v. United
States,
523 U.S. 614, 623 (1998). “This rule, or fundamental
miscarriage of justice exception, is grounded in the ‘equitable
discretion’ of habeas courts to see that federal constitutional
errors do not result in the incarceration of innocent persons.”
Herrera v. Collins,
506 U.S. 390, 404 (1993). It “seeks to
balance the societal interests in finality, comity, and
conservation of scarce judicial resources with the individual
interest in justice that arises in the extraordinary case.”
Schlup v. Delo,
513 U.S. 298, 324 (1995). But the Court has
been clear that “habeas corpus petitions that advance a
substantial claim of actual innocence are extremely rare” and
the exception only applies in limited circumstances: “[T]he
petitioner must show that it is more likely than not that no
reasonable juror would have convicted him in the light of the
new evidence.”
Id. at 327; see also House v. Bell,
547 U.S.
518, 537 (2006). 3
3
In addition to cases where the petitioner alleges actual
10
Until 2013, the Court had applied the actual innocence
exception only to circumvent judge-made procedural barriers to
relief, such as procedural default; it had never spoken on
whether actual innocence could provide an exception to a
statutory bar, such as the § 2255(f)(4) time limit. But in
McQuiggin, the Court did so for the first time, allowing an
actual innocence claim to proceed in the face of the statutory
time bar in 28 U.S.C. § 2244(d)(1)(D). In that case, McQuiggin
had been convicted of murder in state court, based primarily on
the testimony of three witnesses, including one eyewitness.
McQuiggin, 133 S. Ct. at 1929. Later, however, he obtained
affidavits from three other witnesses, whose testimony strongly
implied his innocence.
Id. at 1929-30. McQuiggin eventually
innocence of his crime of conviction, the Supreme Court has held
that the exception can apply to cases in which the petitioner
alleges actual innocence of a death penalty sentence. Though it
has noted that the concept of actual innocence “does not
translate easily into the context of an alleged error at the
sentencing phase of a trial on a capital offense,” Smith v.
Murray,
477 U.S. 527, 537 (1986), the Supreme Court has
nevertheless held that where the petitioner can show “by clear
and convincing evidence that but for constitutional error, no
reasonable juror would find him eligible for the death penalty,”
he may be permitted to file a habeas claim that would otherwise
be procedurally defaulted, Sawyer v. Whitley,
505 U.S. 333, 348,
(1992). Cf. Dretke v. Haley,
541 U.S. 386, 388-89 (2004)
(declining to decide “whether [the actual innocence] exception
applies where an applicant asserts ‘actual innocence’ of a
noncapital sentence”); Dugger v. Adams,
489 U.S. 401, 410 n.6
(1989) (recognizing the Court’s actual innocence of capital
sentence holding in Smith, but declining “to define what it
means to be ‘actually innocent’ of a death sentence”).
11
filed a § 2254 habeas petition alleging ineffective assistance
of counsel, but not until nearly six years after he obtained the
last of the affidavits, rendering his petition untimely under
the 1-year time limit provided in § 2244(d)(1)(D). Id. at 1930.
Despite the statutory bar, the Supreme Court extended the actual
innocence exception it had previously applied in Schlup --
namely, that “a convincing showing of actual innocence enable[s]
habeas petitioners to overcome a procedural bar to consideration
of the merits of their constitutional claims.”
Id. at 1928. In
applying the exception to the statutory context, the court
emphasized the importance of avoiding unjust convictions,
reasoning that “[s]ensitivity to the injustice of incarcerating
an innocent individual should not abate when the impediment is
AEDPA’s statute of limitations.”
Id. at 1932.
Jones now asks us to extend the reasoning of McQuiggin, in
which the petitioner claimed actual innocence of his crime of
conviction, to his case, in which he asserts actual innocence of
his sentence. For several reasons, we decline to do so.
First, the McQuiggin Court made no explicit indication that
its holding was intended to be applied to the actual innocence
of sentence context, and its language and reasoning belie such a
conclusion. The Court only discussed the miscarriage of justice
exception in the context of actual innocence of conviction, and
even then, it explicitly noted the limited nature of the
12
exception. It said, “The miscarriage of justice exception, we
underscore, applies to a severely confined category: cases in
which new evidence shows ‘it is more likely than not that no
reasonable juror would have convicted [the petitioner].’”
McQuiggin, 133 S. Ct. at 1933 (alteration in original) (emphasis
added) (quoting
Schlup, 513 U.S. at 329). And such limiting
language in McQuiggin was not isolated. Indeed, it was
pervasive throughout the opinion. See, e.g.,
id. at 1936 (“We
stress once again that the Schlup standard is demanding. The
gateway should open only when a petition presents evidence of
innocence so strong that a court cannot have confidence in the
outcome of the trial” (quoting
Schlup 513 U.S. at 316) (internal
quotation marks omitted)).
In addition, the McQuiggin standard, which was derived from
the Schlup concern about incarcerating the innocent, cannot, as
a substantive matter, be easily applied to a sentencing
decision. Innocence of conviction implicates the notion that a
person has been incarcerated for a crime he did not commit,
whereas a sentencing error does not at all implicate guilt.
See, e.g., McQuiggin, 133 S. Ct. at 1935 (noting that its
exception to the statutory time bar was based on a petitioner’s
showing “that it is more likely than not that no reasonable
juror would have convicted him in the light of the new evidence”
(quoting Schlup, 513 U.S. at 327) (internal quotation marks
13
omitted); id. at 1935 n.3 (defending the actual innocence
exception “when what is at stake is a State’s incarceration of
an individual for a crime, it has become clear, no reasonable
person would find he committed”);
id. at 1928 (articulating
similar standard).
Despite the restrictive scope of the McQuiggin Court’s
holding, Jones nonetheless claims that McQuiggin “draws no
distinction between actual innocence of conviction and actual
innocence of sentence claims.” He argues that because McQuiggin
is based on the same “miscarriage of justice” framework applied
in the actual innocence of death penalty cases, see, e.g.,
Sawyer v. Whitley, 505 U.S. 333, 348 (1992), the application of
McQuiggin to the actual innocence of sentence context is a
“natural outgrowth.” This argument, however, applies the term
“miscarriage of justice” to practically any error, without
recognizing that various circumstances present varying degrees
of injustice.
In Schlup, the very case that McQuiggin extended to provide
relief from a statutory limitation period, the Court outlined
the stark differences between claims involving actual innocence
of a crime of conviction and claims involving actual innocence
of a capital sentence. It noted that a petitioner claiming
actual innocence of his crime of conviction need only show that
it is more likely than not that no reasonable juror would have
14
found him guilty beyond a reasonable doubt in light of new
evidence (the standard from Carrier), whereas a petitioner
claiming actual innocence of his capital sentence must show by
clear and convincing evidence that, but for a constitutional
error, no reasonable juror would have found him eligible for the
death penalty (the standard from Sawyer). The Court fully
explained the distinction between the two types of claims:
Claims of actual innocence pose less of a threat to
scarce judicial resources and to principles of
finality and comity than do claims that focus solely
on the erroneous imposition of the death penalty.
Though challenges to the propriety of imposing a
sentence of death are routinely asserted in capital
cases, experience has taught us that a substantial
claim that constitutional error has caused the
conviction of an innocent person is extremely rare.
To be credible, such a claim requires petitioner to
support his allegations of constitutional error with
new reliable evidence -- whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence -- that was not
presented at trial. Because such evidence is
obviously unavailable in the vast majority of cases,
claims of actual innocence are rarely
successful. . . .
Of greater importance, the individual interest in
avoiding injustice is most compelling in the context
of actual innocence. The quintessential miscarriage
of justice is the execution of a person who is
entirely innocent. Indeed, concern about the
injustice that results from the conviction of an
innocent person has long been at the core of our
criminal justice system. . . .
Schlup, 513 U.S. at 324-27 (emphasis added) (footnote and
citation omitted). Thus, Schlup makes clear that not all
miscarriage of justice claims are equivalent. And Schlup only
15
compared actual innocence of the crime of conviction with actual
innocence of a death penalty sentence -- a substantial step
removed from the noncapital sentencing context to which Jones
now asks us to apply the McQuiggin extension of the exception.
Because the “miscarriage of justice” in this case is
significantly different from that of McQuiggin, we do not find
Jones’s abstract reference to that term to be a basis for
extending the reasoning of McQuiggin to this case. This case
involves, more modestly, the elimination of a sentencing
enhancement to reduce a sentencing range from 360 months to life
imprisonment to a range of 292 to 365 months’ imprisonment.
Moreover, we note that Jones’s actual sentence of 360 months’
imprisonment in this case fell within both ranges.
At bottom, we conclude that McQuiggin does not extend to
cases in which a movant asserts actual innocence of his
sentence, rather than of his crime of conviction. Indeed, we
have found no case that has granted a movant relief on such a
basis. See, e.g., Sims v. United States, No. 1:04-CR-0048-ODE-
JFK-1, 2014 WL 229335, at *2 (N.D. Ga. Jan. 21, 2014) (declining
to extend McQuiggin to an actual innocence of sentence claim);
Hall v. United States, No. 4:12-02462-TLW,
2014 WL 130446, at *5
(D.S.C. Jan. 14, 2014) (“Petitioner does not claim that he is
actually innocent of the charge for which he was convicted.
Rather, Petitioner claims actual innocence of his sentence as a
16
career offender. Therefore, because Petitioner is not asserting
actual innocence as to his crime of conviction, McQuiggin
provides no relief”); Ellerman v. Walton, No. 13-cv-063-CJP,
2014 WL 103831, at *3 (S.D. Ill. Jan. 10, 2014) (“McQuiggin
discussed only a claim of actual innocence of the conviction”
and thus “does not apply here”); Kizziah v. United States, No.
7:13-cv-8042-VEH-JEO,
2014 WL 51282, at *6-7 (N.D. Ala. Jan. 7,
2014) (holding that petitioner failed to demonstrate factual
innocence and noting that “[t]hus far, the Supreme Court and the
Eleventh Circuit have recognized that the actual innocence
doctrine applies in only two contexts: where the defendant
claims that he is actually innocent of the crime of conviction
and where a defendant claims that he is actually innocent of a
capital sentence”); Monroe v. United States, No. 3:13-CV-2546-
G(BK),
2013 WL 6199955, at *4 (N.D. Tex. Nov. 26, 2013) (noting
that “the Supreme Court has applied the actual innocence
exception only when the petitioner is actually innocent of the
crime of conviction or of the capital sentence”); United States
v. Robinson, No. 10-40037,
2013 WL 5874012, at *3 (D. Kan. Oct.
30, 2013) (“Since the defendant is not asserting his innocence
on his crime of conviction, McQuiggin provides no relief”);
Clayton v. United States, No. 1:12-cv-109-MR,
2013 WL 3381373,
at *3 (W.D.N.C. July 8, 2013) (“Petitioner admitted his guilt.
He merely claims that his sentence was calculated incorrectly.
17
McQuiggin has no applicability to this situation”). But see
Hallman v. United States, No. 3:05-376, 2013 WL 4647536 (D.S.C.
Aug. 29, 2013) (applying McQuiggin to the sentencing context in
dictum).
We have found no case decided by the Supreme Court or a
court of appeals to provide Jones with the relief he requests
from a statutory limitation period. Jones does discuss at
length three Fourth Circuit cases addressing an actual innocence
of sentence exception. But, in each case, the exception was
raised not in the context of a statute of limitations, but
rather in the context of a judge-made procedural default rule.
See United States v. Pettiford, 612 F.3d 270 (4th Cir. 2010);
United States v. Mikalajunas,
186 F.3d 490 (4th Cir. 1999);
United States v. Maybeck,
23 F.3d 888, 890-94 (4th Cir. 1994).
Therefore, none of those cases can provide support for the
notion that Jones can avoid, through the equitable power of a
court, the 1-year limitation period fixed by Congress in §
2255(f)(4). His only potential route for such an argument would
have to be through McQuiggin, and McQuiggin does not apply to
habeas claims based on actual innocence of a sentence.
The judgment of the district court is
AFFIRMED.
18
KING, Circuit Judge, dissenting in part and concurring in the
judgment in part:
Jones asks us to rule today that an AEDPA statute of
limitations may be overcome by a showing of actual innocence of
a non-capital sentence. To so hold, Jones would have us rely on
the Supreme Court’s recent decision in McQuiggin v. Perkins, 133
S. Ct. 1924, 1928 (2013) (recognizing that actual innocence of a
crime of conviction “serves as a gateway through which a
petitioner may pass whether the impediment is a procedural bar
. . . or . . . expiration of the statute of limitations”), as
well as our own line of cases beginning with United States v.
Maybeck,
23 F.3d 888, 891-94 (4th Cir. 1994) (applying an actual
innocence of non-capital sentence exception to a procedural
bar). Under Jones’s interpretation of that precedent, Maybeck’s
actual innocence of non-capital sentence exception operates, in
the wake of McQuiggin, to surmount both procedural bars and
AEDPA’s time limitations.
The panel majority declares, however, “that McQuiggin does
not extend to cases in which a movant asserts actual innocence
of his sentence, rather than of his crime of conviction.” Ante
at 15. Concomitantly, the majority restricts Maybeck and its
progeny to “the context of a judge-made procedural default
rule.” Id. at 17. In other words, the majority broadly
concludes that no petitioner can ever overcome an AEDPA statute
19
of limitations by showing actual innocence of any non-capital —
or even capital — sentence.
Because the panel majority’s sweeping decision is not only
highly debatable, but also unnecessary to disposing of Jones’s
appeal, I dissent. Nevertheless, I concur in the judgment
insofar as it affirms the district court. In getting to that
result, I would assume that Maybeck’s actual innocence of non-
capital sentence exception may function under McQuiggin to
overcome an AEDPA statute of limitations, but conclude that such
exception cannot help Jones because he was not sentenced as a
habitual offender. See United States v. Pettiford, 612 F.3d
270, 284 (4th Cir. 2010) (explaining that the Maybeck exception
applies only “in the context of habitual offender provisions”
and only then “where the challenge to eligibility stems from
factual innocence of the predicate crimes, and not from the
legal classification of the predicate crimes”).
That is, I would leave for another day — and a more
appropriate case — the question of whether AEDPA’s time
limitations foreclose a late-filed claim alleging actual
innocence of a non-capital (or capital) sentence. * I therefore
dissent in part and concur in the judgment in part.
*
Notably, in many of the district court decisions cited
favorably by the panel majority, see ante at 15-17, the courts
did exactly what I propose we do today: They exercised judicial
20
restraint and refrained from unnecessarily deciding whether a
showing of actual innocence of sentence may be sufficient to
overcome an AEDPA statute of limitations. See Sims v. United
States, No. 1:04-cr-0048, 2014 WL 229335, at *2 (N.D. Ga. Jan.
21, 2014) (acknowledging possible existence of exception
premised on actual innocence of non-capital sentence, but
concluding that movant did not make requisite showing of
factual, rather than mere legal, innocence); Kizziah v. United
States, No. 7:13-cv-8042,
2014 WL 51282, at *6-7 (N.D. Ala. Jan.
7, 2014) (same); Monroe v. United States, No. 3:13-cv-2546,
2013
WL 6199955, at *4 (N.D. Tex. Nov. 26, 2013) (same); United
States v. Robinson, No. 10-40037,
2013 WL 5874012, at *3 (D.
Kan. Oct. 30, 2013) (same).
21
