Fourth Time is the Charm: Successive §2241 petition may succeed in overturning a twenty-year old convictionJeffrey Holland v. Warden Canaan USP. No. 19-1800 (Third Cir., 5/19/2021), 2021 U.S. App. LEXIS 14899 *
Judge Bibas, writing for a panel including Judges Restrepo and Porter, penned an opinion holding that a defendant’s challenge to his twenty-year old conviction for violating 18 U.S.C. §924(c) not only could go forward, but on remand should probably be granted. Congratulations to James Feldman for a well-plotted appeal.
In 1999 Holland was charged with (1) manufacturing, possessing, (2) distributing cocaine; conspiring to do the same; (3) using a gun to murder someone during those crimes; and (4) of violating 18 U.S.C. §924(c) by use of a firearm in relations to a drug trafficking crime and aiding and abetting that crime. The latter charge was based on Holland’s accepting an offer to purchase a gun from one of his customers for drugs and money. About seven years after Holland’s conviction, following the publication of Watson v. United States, 552 U.S. 74, 83 (2007), that trade was no longer considered a crime.
Prior to 2007, Holland unsuccessfully challenged his conviction on direct appeal and in a 28 U.S.C. §2255 petition. After Watson he filed a petition under 28 U.S.C. §2241, but the District Court said he should have filed under §2255, and in any event, his petition was untimely. He filed two more petitions under §2241 raising actual innocence, but they were dismissed too, All the dismissals were affirmed by the Third Circuit. His fourth §2241 petition is the one that formed the basis for this opinion. Neither the Government nor the District Court treated it as successive, and the District Court further found that “a §2255 motion would be ‘inadequate or ineffective’ to test the legality of Holland’s detention.” Still the District Court denied the motion because even if Holland did not use the gun in the transaction, the person he bought it from did by trading it for drugs, and Holland aided and abetted the transaction. Holland appealed.
The panel first found it had jurisdiction to hear the matter under §2255(e)’s savings clause, which allows a §2241 petition when a §2255 petition would be "inadequate or ineffective to test the legality of [the petitioner’s] detention." Though the AEDPA and “the equitable abuse-of-the-writ doctrine limit second or successive petitions,” that law and the history of habeas corpus does not treat those limits as jurisdictional. The Court can choose to hear them, especially when, as in this case, the Government did not raise the bar on successive habeas petitions in the District Court. “[L]imits on successive §2241 petitions are discretionary and equitable—not mandatory and jurisdictional,” Judge Bibas wrote.
Next the panel found insufficient proof the purchaser of the drugs violated §924(c). Buying dugs for personal with a gun does not violate §924(c) if it does not aid felonious drug trafficking activity— the purchaser’s crime might only have been a misdemeanor, and if so, Holland was not “aiding and abetting” a felony. (The opinion noted a Further, on the record before the panel, Holland’s possessing the gun at some point in the transaction was not use of the gun in furtherance of the felony. Holland was convicted solely on evidence of using the gun at the end of the transaction, not using it during and in relation to drug trafficking crime. His conviction was not based on his possession of it. (The opinion notes a Circuit split on the issue of whether possession of a gun under these circumstances violates §924(c), but did not address it, as Holland was not convicted on the basis of possession.)
In the end, the panel remanded the matter to the district court for a further inquiry into whether the person who purchased the drugs with the gun violated §924(c). This summary by the way, does not do justice to Judge Bibas’ compact and well-written opinion. It deserves a read.