PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TIMOTHY A. RICE,
Petitioner-Appellant,
v. No. 08-8191
M. L. RIVERA, Warden,
Respondent-Appellee.
TIMOTHY A. RICE,
Petitioner-Appellant,
v. No. 09-6001
M. L. RIVERA, Warden,
Respondent-Appellee.
Appeals from the United States District Court
for the District of South Carolina, at Charleston.
G. Ross Anderson, Jr., Senior District Judge.
(2:08-cv-01390-GRA)
Argued: March 23, 2010
Decided: September 7, 2010
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Reversed and remanded with directions; authorization denied
by published per curiam opinion.
2 RICE v. RIVERA
COUNSEL
ARGUED: Stephen Rawson, DUKE UNIVERSITY
SCHOOL OF LAW, Durham, North Carolina, for Appellant.
Jeffrey Mikell Johnson, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee. ON
BRIEF: James E. Coleman, Jr., Sean E. Andrussier, Michael
Gilles, Brian Kappel, James McKell, DUKE UNIVERSITY
SCHOOL OF LAW, Durham, North Carolina, for Appellant.
W. Walter Wilkins, United States Attorney, Robert F. Daley,
Jr., Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.
OPINION
PER CURIAM:
In 1990, appellant Timothy Rice was convicted in the Dis-
trict of South Carolina of using a firearm during and in rela-
tion 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 (1995), which circumscribed what it
means to "use" a firearm in violation of § 924(c). In the dis-
trict court, the Government agreed with Rice’s Bailey conten-
tion, explaining in its answer to his habeas corpus motion that
the conduct underlying his § 924(c) conviction failed to sat-
isfy 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 (D.S.C. Sept. 24, 2008) (the "Dis-
trict Court Opinion").1 Rice has appealed the denial of both
1
The District Court Opinion is found at J.A. 55-68. (Citations herein to
"J.A. __" refer to the Joint Appendix filed by the parties in this appeal.)
RICE v. RIVERA 3
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 convic-
tion to be vacated.
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 summa-
rized. 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 milli-
meter 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 inci-
dent. 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 prece-
dent 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). Specif-
ically, 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.
4 RICE v. RIVERA
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 (1995),
which narrowed the meaning of "use" in § 924(c). The Bailey
decision rejected our previous conclusion that mere posses-
sion of a firearm in connection with a drug trafficking offense
could constitute "use." See 516 U.S. at 143. 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).
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 Pen-
alty 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) con-
viction illegal. The Habeas Motion was filed pursuant to 28
U.S.C. § 2241, even though "[t]hose 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).
On July 7, 2008, the Government filed its answer to the
2
The district court sentenced Rice to more than thirty years on the four
other offenses. He received a five-year consecutive sentence on the
§ 924(c) conviction, which he is not yet serving.
RICE v. RIVERA 5
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 defini-
tion 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 dis-
trict 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. Explaining
that the parties agreed that "the facts and evidence do not sup-
port a conviction under § 924(c)," the magistrate judge rec-
ommended awarding relief on the Habeas Motion, and did not
address the separate Motion to Vacate. J.A. 52 (internal quo-
tation marks omitted). On September 24, 2008, the court
declined to adopt the magistrate judge’s recommendation and
denied both the Habeas Motion and the Motion to Vacate. See
District Court Opinion 13-14. Although the court believed
that it possessed jurisdiction to consider the Habeas Motion
under § 2241, it disagreed with both Rice and the Government
on the application of Bailey to the § 924(c) conviction. As a
result, the court ruled "that there is a factual basis for which
6 RICE v. RIVERA
to sustain the conviction," and denied the Habeas Motion. Id.
at 13. Additionally, the court summarily denied the Motion to
Vacate, stating only that "the facts and evidence [are] suffi-
cient to sustain a conviction." See id. at 14.
Thereafter, Rice filed a timely notice of appeal. On appeal,
the Government has become somewhat of a moving target,
altering its earlier position in two important respects. First, the
Government now asserts that there is no jurisdictional basis
for the Habeas Motion, contending that it is simply an unau-
thorized second or successive § 2255 motion. Second, contra-
dicting the position espoused in its Answer and subsequent
Motion to Vacate, the Government now agrees with the dis-
trict court on the merits of the Bailey issue. It has not, how-
ever, reneged on or sought to withdraw its Motion to Vacate.
II.
A.
In resolving this appeal, we first assess the habeas corpus
aspect of these proceedings, including whether jurisdiction
exists over the Habeas Motion. As noted, the Government
now challenges Rice’s ability to seek habeas corpus relief
under 28 U.S.C. § 2241, contending that jurisdiction was
lacking in the district court and that the Habeas Motion should
have been dismissed as a second or successive motion under
28 U.S.C. § 2255. Although such reversals of position are dis-
tasteful occurrences, and the Government’s change of position
is not to be encouraged, its about-face is irrelevant to our res-
olution of the jurisdictional issue. In short, "[e]very federal
appellate court has a special obligation to satisfy itself not
only of its own jurisdiction, but also that of the lower courts
in a cause under review." United States v. Poole, 531 F.3d
263, 270 (4th Cir. 2008) (internal quotation marks omitted).
As a threshold matter, it is well established that defendants
convicted in federal court are obliged to seek habeas relief
RICE v. RIVERA 7
from their convictions and sentences through § 2255. See In
re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (en banc). It is
only when "§ 2255 proves inadequate or ineffective to test the
legality of detention," that a federal prisoner may pursue
habeas relief under § 2241. See id. (alteration and internal
quotation marks omitted). Importantly, "the remedy afforded
by § 2255 is not rendered inadequate or ineffective merely
because . . . an individual is procedurally barred from filing
a § 2255 motion." Id. at 1194 n.5.
Rice maintains on appeal that § 2241 is the appropriate
vehicle for habeas relief because he is "actually innocent" of
the 18 U.S.C. § 924(c) offense yet procedurally barred from
filing a § 2255 motion. Our In re Jones decision — which
also concerned an innocence claim under Bailey v. United
States, 516 U.S. 137 (1995) — delineates the circumstances
in which § 2241 may be used to pursue such a habeas claim.
See In re Jones, 226 F.3d 328 (4th Cir. 2000). More specifi-
cally, § 2255 is inadequate and ineffective — and § 2241 may
be utilized — when:
(1) at the time of conviction, settled law of this cir-
cuit or the Supreme Court established the legality of
the conviction; (2) subsequent to the prisoner’s
direct appeal and first § 2255 motion, the substantive
law changed such that the conduct of which the pris-
oner was convicted is deemed not to be criminal; and
(3) the prisoner cannot satisfy the gatekeeping provi-
sions of § 2255 because the new rule is not one of
constitutional law.
Id. at 333-34. In short, under the Jones rule a federal prisoner
is entitled to pursue a § 2241 motion only when he had no
opportunity to utilize a § 2255 motion to take advantage of a
change in the applicable law. If, conversely, the prisoner had
an unobstructed procedural shot at filing a § 2255 motion to
take advantage of such a change, a § 2241 motion is unavail-
8 RICE v. RIVERA
able to him, and any otherwise unauthorized habeas motion
must be dismissed for lack of jurisdiction.
In these circumstances, the district court lacked jurisdiction
over the Habeas Motion because Rice is unable to satisfy the
second prong of the Jones rule. Under Jones, § 2255 can be
deemed "inadequate or ineffective" only if, "subsequent to the
prisoner’s . . . first § 2255 motion, the substantive law
changed such that the conduct of which the prisoner was con-
victed is deemed not to be criminal." Jones, 226 F.3d at 333-
34 (emphasis added). Here, the Supreme Court issued its Bai-
ley decision in 1995, at a point in time when Rice had not yet
filed a § 2255 motion.3 Thus, Bailey was not decided "subse-
quent to [Rice’s] . . . first § 2255 motion," as required by
Jones. As a result, Rice cannot now establish that § 2255 is
ineffective or inadequate to test the legality of his § 924(c)
conviction.
Put simply, Rice is not entitled to pursue habeas corpus
relief under § 2241. Because the district court should have
dismissed the Habeas Motion for lack of jurisdiction, we
reverse on the Habeas Motion and remand. Under these cir-
cumstances, however, we are also obliged to construe Rice’s
appeal as a request for leave to file a second or successive
§ 2255 motion. See United States v. Winestock, 340 F.3d 200,
208 (4th Cir. 2003). And, because Bailey did not establish a
new rule of constitutional law, we are constrained to deny that
request. See Vial, 115 F.3d at 1198.
B.
Having disposed of the habeas corpus aspect of this appeal,
3
Moreover, Rice had not filed his first § 2255 motion by 1998, when
Bailey was made retroactive to cases on collateral review. See Bousley v.
United States, 523 U.S. 614 (1998); see also Vial, 115 F.3d at 1197 n.9
(explaining that statute of limitations was tolled until Bailey became retro-
active).
RICE v. RIVERA 9
we turn to an assessment of the district court’s denial of the
Motion to Vacate. Although the Motion to Vacate does not
identify the authority under which it is made, the Government
represented at oral argument that its sole source of authority
is Federal Rule of Criminal Procedure 48(a), which provides
that "[t]he government may, with leave of court, dismiss an
indictment, information, or complaint." In evaluating the dis-
trict court’s treatment of the Motion to Vacate, we again
begin with the question of whether the court possessed juris-
diction. We then consider whether Rule 48 authorized the
Government to utilize the Motion to Vacate in these circum-
stances (i.e., after conviction and direct appeal). Finally, we
assess whether the court properly evaluated and disposed of
the Motion to Vacate.4
4
Notably, Rice asserted in his pro se informal appellate brief that the
district court improperly evaluated and disposed of the Motion to Vacate,
thereby preserving this claim for our review. Rice has emphasized that the
Motion to Vacate should have been granted because Bailey rendered his
conviction illegal. In assessing the Motion to Vacate, however, we are
obliged to consider other issues — whether the court had jurisdiction over
the Motion to Vacate, whether Rule 48 authorized such a motion, and
whether the court utilized the proper legal standard in disposing of the
motion. See Poole, 531 F.3d at 270 (recognizing appellate court’s "special
obligation to satisfy itself" of lower court’s jurisdiction (internal quotation
marks omitted)); New Amsterdam Cas. Co. v. Waller, 323 F.2d 20, 25 (4th
Cir. 1963) ("[A] party’s misconception of the legal theory of his case does
not work a forfeiture of his legal rights."). Moreover, that those issues
were not better developed in Rice’s formal opening brief is presumably
because we instructed Rice’s appointed counsel (the Appellate Litigation
Clinic at Duke University) to focus on whether the "district court correctly
found Rice’s [§ 924(c)] conviction lawful after Bailey." Letter from Fourth
Circuit to Duke Univ. Sch. of Law, Appellate Litig. Clinic, Rice v. Rivera,
Nos. 08-8191/09-6001 (4th Cir. Sept. 9, 2009). As such, even if Rice
abandoned the relevant issues, we would, in these circumstances, likely
exercise our discretion to overlook such abandonment. See A Helping
Hand, LLC v. Balt. Cnty., Md., 515 F.3d 356, 369 (4th Cir. 2008).
10 RICE v. RIVERA
1.
First, we assess whether the district court possessed juris-
diction to entertain the Motion to Vacate. In a recent decision
on point, the D.C. Circuit evaluated and explained the juris-
dictional predicate for a Rule 48 motion made by the prosecu-
tion in strikingly similar circumstances, namely, following a
§ 924(c) conviction and an unsuccessful direct appeal. See
United States v. Smith, 467 F.3d 785, 787 (D.C. Cir. 2006).
Like that court of appeals, we are persuaded that a district
court’s jurisdiction over a Rule 48 motion in such circum-
stances stems from 18 U.S.C. § 3231, which provides the
"district courts of the United States [with] original jurisdiction
. . . of all offenses against the laws of the United States." See
also Hugi v. United States, 164 F.3d 378, 380 (7th Cir. 1999)
("Subject-matter jurisdiction in every federal criminal prose-
cution comes from 18 U.S.C. § 3231 . . . .").5 Although the
federal courts have rarely been asked to confront the issue, we
are constrained to agree that some measure of jurisdiction
over a criminal prosecution remains with the sentencing court
even after conviction and appeal. See Smith, 467 F.3d at 788
("[D]istrict courts retain some reservoir of jurisdiction — dis-
tinct from the rules of criminal procedure themselves — to
entertain motions after final judgment.").
Like the Smith court, we are guided by the Supreme
Court’s decision in Eberhart v. United States, 546 U.S. 12
(2005) (per curiam). In Eberhart, the Supreme Court assessed
Federal Rule of Criminal Procedure 33, which authorizes a
district court to "vacate any judgment and grant a new trial if
the interest of justice so requires," but prescribes rigid dead-
lines within which new trial motions may be filed. See 546
U.S. at 13. The issue was whether Rule 33 was "jurisdic-
tional" or, on the other hand, merely "an inflexible claim-
5
We, in turn, possess jurisdiction over Rice’s appeal pursuant to 28
U.S.C. § 1291, as Rice appeals from a final decision of the district court
denying the Motion to Vacate.
RICE v. RIVERA 11
processing rule." Id. (internal quotation marks omitted).6 The
Seventh Circuit had "construed Rule 33’s time limitations as
‘jurisdictional,’ permitting the Government to raise noncom-
pliance with those limitations for the first time on appeal." Id.
The Supreme Court disagreed, however, concluding instead
that Rule 33 is a nonjurisdictional claim-processing rule,
which "assure[s] relief to a party properly raising [it], but
do[es] not compel the same result if the party forfeits [it]." Id.
at 19. Thus, the Court explained, "where the Government
failed to raise a defense of untimeliness until after the District
Court had reached the merits, it forfeited that defense." Id.
The Eberhart decision is significant for its implicit
approval of a district court’s jurisdiction to entertain an
untimely Rule 33 motion, even after a conviction has become
final. If Rule 33 is merely a claim-processing rule, which can
neither create nor expand a federal court’s jurisdiction, see
Kontrick v. Ryan, 540 U.S. 443, 453 (2004), then a district
court’s jurisdiction over an untimely Rule 33 motion — con-
tinuing for years after the adjudication of guilt — must arise
from some other source, such as § 3231. See Eberhart, 546
U.S. at 17 (distinguishing between lack of "subject-matter
jurisdiction" and courts’ obligation to "observe the clear lim-
its of the Rules of Criminal Procedure when they are properly
invoked"). Thus, the question we must answer is whether,
under Eberhart, a district court may entertain a post-
conviction Rule 48 motion. As the D.C. Circuit explained in
its Smith case, Rule 33 "explicitly addresses a court’s ability
to ‘vacate any judgment,’" rendering it "analogous" to the
power conferred on the district courts by Rule 48. Smith, 467
F.3d at 789. And, practically speaking, the Government in this
case — in lieu of making the Motion to Vacate — could have
made "an unopposed motion for retrial under Rule 33, and
6
Rule 33 provides that a motion for a new trial based on newly discov-
ered evidence must be filed within three years of an adjudication of guilt,
whereas motions predicated on any other ground must be filed within
fourteen days. See Fed. R. Crim. P. 33(b).
12 RICE v. RIVERA
then moved to dismiss the new indictment under Rule 48." Id.
at 789. If that course would be free of jurisdictional error
under the approach outlined in Eberhart, we are confident
that, in this situation, the district court possessed jurisdiction
to entertain the Motion to Vacate.
2.
Because the district court possessed jurisdiction over the
Motion to Vacate, we must decide whether Rule 48 could be
used in these circumstances. Despite the fact that the text of
Rule 48 speaks only of the dismissal of an "indictment, infor-
mation, or complaint," neither Rice nor the Government has
asserted that application of the Rule is inappropriate after his
conviction and unsuccessful direct appeal. As explained
below, however, we need not resolve whether Rule 48 con-
tains some limitations that could preclude its use in this con-
text. Instead, guided by the Supreme Court’s Eberhart
decision, we agree with the D.C. Circuit that Rule 48 is a
claim-processing rule, which had to be invoked by a litigant
in the district court in order to avoid forfeiture. See Smith, 467
F.3d at 789. Thus, the Government (which made the Motion
to Vacate) and Rice (who urged the court to grant it) have
each forfeited any right to contend that Rule 48 could not be
used in this context.
Recently, the Supreme Court has "undertaken to clarify the
distinction between claims-processing rules and jurisdictional
rules." Bowles v. Russell, 551 U.S. 205, 210 (2007). Indeed,
the Court has taken the lower courts and litigants to task for
loosely using the "jurisdictional" label, which is properly lim-
ited to "prescriptions delineating the classes of cases (subject-
matter jurisdiction) and the persons (personal jurisdiction)
falling within a court’s adjudicatory authority." Kontrick, 540
U.S. at 455 (internal quotation marks omitted). By contrast,
claim-processing rules — such as court-prescribed rules of
practice and procedure — "merely prescribe the method by
which the jurisdiction granted the courts by Congress is to be
RICE v. RIVERA 13
exercised." United States v. Hartwell, 448 F.3d 707, 717 (4th
Cir. 2006) (internal quotation marks omitted). Maintaining the
distinction between jurisdictional rules and claim-processing
rules is critical. Jurisdictional restrictions provide absolute
limits on a court’s power to hear and dispose of a case, and
such limits can never be waived or forfeited. See Kontrick,
540 U.S. at 456. Claim-processing rules, by contrast, are to be
rigidly applied when invoked by a litigant, but can be for-
feited if not raised and pursued in a timely fashion. See id.
It is also important that, in order to be jurisdictional, a rule
must be predicated on a valid statute. See Bowles, 551 U.S.
at 212 ("Congress decides what cases the federal courts have
jurisdiction to consider."); Kontrick, 540 U.S. at 452 ("Only
Congress may determine a lower federal court’s subject-
matter jurisdiction.").7 Court-prescribed rules governing prac-
tice and procedure, however, "do not create or withdraw fed-
eral jurisdiction." Kontrick, 540 U.S. at 453 (internal
quotation marks omitted); see also Bowles, 551 U.S. at 210-
13; Eberhart, 546 U.S. at 15-16. Thus, a court-prescribed rule
of practice and procedure will only be deemed jurisdictional
if it is statutorily mandated. See Bowles, 551 U.S. at 210-12.
Notably, our Court has carefully adhered to the foregoing
guidance. See, e.g., United States v. Urutyan, 564 F.3d 679,
685 (4th Cir. 2009) (holding that rule of procedure requiring
criminal defendant to notice appeal within ten days is claim-
processing rule); Hartwell, 448 F.3d at 717 (concluding that
rule of procedure requiring indictment in capital cases is
claim-processing rule); Brickwood Contractors, Inc. v. Data-
net Eng’g, Inc., 369 F.3d 385, 396 (4th Cir. 2004) (en banc)
(holding that civil rule specifying mechanisms for sanctions
is claim-processing rule).
7
A statutory basis is essential, but not in itself sufficient, to render a rule
jurisdictional. See Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1244-
47 (2010) (concluding that Copyright Act’s pre-suit registration require-
ment is not jurisdictional). Rather, a statute must "‘clearly state[ ]’ that its
. . . requirement is ‘jurisdictional’" to be treated as such. Id. at 1245 (quot-
ing Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006)).
14 RICE v. RIVERA
Consistent with these principles, it is clear that Rule 48 is
a claim-processing rule, rather than a jurisdictional restriction.
See Smith, 467 F.3d at 789. As explained above, a district
court’s jurisdiction over a post-conviction Rule 48 motion is
provided by § 3231. And Rule 48, as a Federal Rule of Crimi-
nal Procedure, "[can]not create or withdraw federal jurisdic-
tion." Kontrick, 540 U.S. at 453 (internal quotation marks
omitted). Moreover, we know of "no statute that withdraws or
otherwise limits this grant of subject-matter jurisdiction" to
entertain Rule 48 motions, even procedurally defective ones.
Brickwood, 369 F.3d at 392. Accordingly, because any limita-
tions of Rule 48 do "not implicate the district court’s subject
matter jurisdiction," the issue of compliance with those limita-
tions "is subject to forfeiture if not timely raised." Id. at 395.
And, because neither party contested the propriety of the
Motion to Vacate in the district court, each has forfeited any
objection to it now being adjudicated. See Kontrick, 540 U.S.
at 456.
3.
Yet remaining in this appeal is the question of whether the
district court utilized the proper legal standard in ruling on the
Motion to Vacate. Under our precedent, we review for abuse
of discretion a district court’s denial of the Government’s
motion to vacate a conviction. See United States v. Smith, 55
F.3d 157, 158 (4th Cir. 1995). Of course, "a district court by
definition abuses its discretion when it makes an error of
law." United States v. Prince-Oyibo, 320 F.3d 494, 497 (4th
Cir. 2003) (alteration and internal quotation marks omitted).
Moreover, in conducting our analysis, we are mindful that our
Smith decision emphasizes the careful scrutiny we apply to a
district court’s resolution of a Rule 48 motion, for motions
made pursuant to that Rule implicate "the constitutional issue
of the Separation of Powers Doctrine." Smith, 55 F.3d at 158.
In reality, therefore, "the trial court has little discretion in con-
sidering a government motion to dismiss made pursuant to
[Rule 48]." United States v. Perate, 719 F.2d 706, 710 (4th
RICE v. RIVERA 15
Cir. 1983). Accordingly, a district court may deny a Rule 48
motion only where it "is ‘clearly contrary to manifest public
interest.’" United States v. Manbeck, 744 F.2d 360, 372 (4th
Cir. 1984) (quoting Rinaldi v. United States, 434 U.S. 22, 30
(1977)). And, our precedent is that a district court "must grant
a prosecution’s [Rule 48] motion unless clearly contrary to
manifest public interest." United States v. Kellam, 568 F.3d
125, 133 (4th Cir. 2009) (emphasis added) (internal quotation
marks omitted).
Whether granting a Rule 48 motion would be clearly con-
trary to manifest public interest "should be decided by deter-
mining whether the prosecutor acted in good faith at the time
he moved for dismissal." Smith, 55 F.3d at 159. Put suc-
cinctly, a Rule 48 motion "that is not motivated by bad faith
is not clearly contrary to manifest public interest, and it must
be granted." Id. (emphasis added). Moreover, "[t]he disservice
to the public interest must be found, if at all, in the motive of
the prosecutor." Id. Examples of bad faith have been circum-
scribed to "include the prosecutor’s acceptance of a bribe,
personal dislike of the victim, and dissatisfaction with the jury
impaneled." Id.
Judge Butzner’s decision in our Smith case is particularly
instructive. There, the Government had filed its Rule 48
motion after Smith pleaded guilty and testified against his
codefendants, all of whom were acquitted. See Smith, 55 F.3d
at 158. The district court denied the Rule 48 motion, however,
believing "that Smith’s guilty plea and corroborating testi-
mony constituted substantial evidence of his guilt." Id. at 160.
We reversed, explaining that the Rule 48 motion had to be
granted because "the United States Attorney was not moti-
vated by considerations clearly contrary to the public inter-
est," but rather by a "substantial, reasonable doubt about the
guilt of a defendant that arose after conviction." Id. Recogniz-
ing that "it is the duty of the United States Attorney not sim-
ply to prosecute but to do justice," we explained that the court
was not free to deny the Rule 48 motion in such circum-
16 RICE v. RIVERA
stances. Id. (internal quotation marks omitted). We thus "re-
manded with directions to grant the government’s motion to
dismiss." Id.
Applying the precedent of our Smith decision, we are con-
strained to reverse the denial of the Motion to Vacate and
direct that it be granted. Notably, the Motion to Vacate incor-
porated the Answer, which maintained that Rice was "entitled
to have his conviction as to the [§ 924(c) offense] vacated."
J.A. 49. The Answer offered a thorough recitation of the pro-
cedural and factual history of Rice’s § 924(c) conviction,
along with the Government’s analysis of why, "[i]n light of
Bailey, the facts and evidence do not support a conviction."
Id. at 33. The district court denied the Motion to Vacate, how-
ever, explaining that "[a]fter a thorough review of the record
and the case law," it determined that "the facts and evidence
[are] sufficient to sustain a conviction." District Court Opin-
ion 14. In other words, the court simply disagreed with the
decision to vacate made by the United States Attorney, but
failed to find that the Motion to Vacate had been made in bad
faith.
Moreover, it has never been alleged that the Government
exercised bad faith in pursuing the Motion to Vacate. Indeed,
the sitting United States Attorney and the Assistant United
States Attorney who successfully prosecuted Rice were con-
vinced that his conduct could not support a § 924(c) convic-
tion. And, as Judge Butzner explained in Smith, "substantial,
reasonable doubt about the guilt of a defendant," arising after
conviction, "is evidence of good faith." 55 F.3d at 160. In
these circumstances, the district court could not deny the
Motion to Vacate simply because it disagreed with Rice and
the Government on the merits of the Bailey issue, for a Rule
48 motion "that is not motivated by bad faith is not clearly
contrary to manifest public interest, and it must be granted."
Id. at 159 (emphasis added).
RICE v. RIVERA 17
III.
Pursuant to the foregoing, we reverse the District Court
Opinion for lack of jurisdiction under 28 U.S.C. § 2241,
decline to authorize a second or successive motion under 28
U.S.C. § 2255, and remand for dismissal of the Habeas
Motion. We also reverse the denial of the Motion to Vacate
and remand for it to be granted.
REVERSED AND REMANDED WITH DIRECTIONS;
AUTHORIZATION DENIED