Rice v. Rivera

617 F.3d 802, 2010 U.S. App. LEXIS 18697, 2010 WL 3474802
CourtCourt of Appeals for the Fourth Circuit
DecidedSeptember 7, 2010
Docket08-8191, 09-6001
StatusPublished
Cited by273 cases

This text of 617 F.3d 802 (Rice v. Rivera) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rice v. Rivera, 617 F.3d 802, 2010 U.S. App. LEXIS 18697, 2010 WL 3474802 (4th Cir. 2010).

Opinion

OPINION

PER CURIAM:

In 1990, appellant Timothy Rice was convicted in the District of South Carolina of using a firearm during and in relation to a drug trafficking offense, in contravention of 18 U.S.C. § 924(c). In 2008, Rice sought habeas corpus relief, maintaining that his § 924(c) conviction had been rendered illegal by the Supreme Court’s decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which circumscribed what it means to “use” a firearm in violation of § 924(c). In the district court, the Government agreed with Rice’s Bailey contention, explaining in its answer to his habeas corpus motion that the conduct underlying his § 924(c) conviction failed to satisfy Bailey’s definition of that offense. Independently of its answer to the habeas motion, the Government moved the court to vacate Rice’s § 924(c) conviction. The district court, however, declined to award any relief to Rice. See Rice v. Rivera, No. 2:08-cv-1390, 2008 WL 4414721 (D.S.C. Sept. 24, 2008) (the “District Court Opinion”). 1 Rice has appealed the denial of both motions. As explained below, we conclude that the district court lacked jurisdiction over Rice’s habeas corpus motion, decline to authorize the filing of a second or successive habeas motion, reverse the denial of the Government’s motion to vacate the § 924(c) conviction, and remand for the conviction to be vacated.

*805 I.

On July 26, 1990, a federal grand jury in South Carolina indicted Rice on five drug-related offenses, including the 18 U.S.C. § 924(c) offense underlying these proceedings. The evidence concerning Rice’s § 924(c) charge is easily summarized. Upon the execution of a search warrant at Rice’s home in Spartanburg, South Carolina, on May 3,1990, the police found Rice in his bedroom. The officer who testified on the § 924(c) charge in the 1990 trial related that, when the police entered the bedroom, Rice was lying on the bed and “reached over to a table over next to his bed and there was a nine millimeter handgun laying on the table.” J.A. 35. The officer advised Rice that he would “kill him if he didn’t ... reach back from the gun.” Id. In response, Rice “rolled back in the bed and laid down,” submitting to arrest without further incident. Id. Rice also testified, denying that he had reached for the gun.

The district court instructed the jury on the § 924(c) offense in a manner consistent with this Court’s then-existing precedent that “constructive possession of a firearm in connection with a drug trafficking offense was sufficient to establish ‘use.’ ” In re Jones, 226 F.3d 328, 330 (4th Cir.2000). Specifically, the court instructed that “[t]he phrase ‘used a firearm’ means having a firearm available to aid in the commission of the drug trafficking crimes.” J.A. 42. The instructions also explained that “[a] firearm can be considered used in relation to a felony involving drug trafficking if the person possessing it intended to use the gun as a contingency arose”— “[f]or example, to protect himself or to make escape possible.” Id. On October 17, 1990, the jury found Rice guilty of the § 924(c) offense, as well as the four other charges. 2

In 1995, three years after Rice’s convictions and sentence were affirmed on direct review by this Court, the Supreme Court decided Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which narrowed the meaning of “use” in § 924(c). The Bailey decision rejected our previous conclusion that mere possession of a firearm in connection with a drug trafficking offense could constitute “use.” See 516 U.S. at 143, 116 S.Ct. 501. Instead, the Court held “that the Government must prove active employment of a firearm in order to convict under the ‘use’ prong of § 924(c).” Jones, 226 F.3d at 330 (emphasis added) (citing Bailey, 516 U.S. at 143, 116 S.Ct. 501).

On July 6, 2001, more than five years after Bailey was decided, Rice filed a pro se habeas motion under 28 U.S.C. § 2255. The district court dismissed the § 2255 motion—which did not challenge Rice’s § 924(c) conviction—as time-barred under the Antiterrorism and Effective Death Penalty Act. Rice then sought but was denied a certificate of appealability.

On April 9, 2008, Rice filed in the district court the pro se habeas motion at issue in this appeal (the “Habeas Motion”), asserting that the Bailey decision rendered his § 924(c) conviction illegal. The Habeas Motion was filed pursuant to 28 U.S.C. § 2241, even though “[tjhose convicted in federal court are required to bring collateral attacks challenging the validity of their judgment and sentence by filing a motion to vacate sentence pursuant to [§ 2255].” In re Vial, 115 F.3d. 1192, 1194 (4th Cir.1997) (en banc).

*806 On July 7, 2008, the Government filed its answer to the Habeas Motion (the “Answer”). Despite noting a potential jurisdictional challenge to Rice’s use of § 2241, the Answer acknowledged that the Habeas Motion was “properly brought.” J.A. 27, 31. It also agreed with Rice that relief should be granted on the merits, specifying that the § 924(c) conviction “must be vacated” because the conduct “that was used as a basis for such conviction does not meet the definition of the offense as set forth in Bailey.” Id. at 27.

Two days later, on July 9, 2008, the Government went one step further on Rice’s behalf, independently moving the district court to vacate Rice’s § 924(c) conviction (the “Motion to Vacate”). Incorporating the analysis of the Answer, the Motion to Vacate informed the court that “[t]he United States agrees that Petitioner is entitled to have his conviction ... vacated.” J.A. 49. Accordingly, the Government moved the district court “to vacate the conviction of Timothy A. Rice ... as to Count Five of Indictment Number 90-310, which count charges a violation of 18 U.S.C. § 924(c).” Id. at 49-50. The Motion to Vacate was filed by the United States Attorney and signed by the same Assistant United States Attorney who had successfully prosecuted Rice in 1990.

Rice’s Habeas Motion and the Government’s Motion to Vacate were submitted to a magistrate judge, who issued a report and recommendation to the district court.

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Bluebook (online)
617 F.3d 802, 2010 U.S. App. LEXIS 18697, 2010 WL 3474802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rice-v-rivera-ca4-2010.