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, 313 F.3d 1228 (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felony when his probation was revoked, since he was not represented by counsel,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,” id. at 4. 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, 126 S. Ct.
1675, 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
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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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