PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-8436
DANNY KEITH THOMAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(5:05-cr-00205-RLV-DCK-1; 5:08-cv-00116-RLV)
Argued: September 24, 2010
Decided: December 29, 2010
Before TRAXLER, Chief Judge, KING, Circuit Judge,
and Jerome B. FRIEDMAN, Senior United States District
Judge for the Eastern District of Virginia,
sitting by designation.
Vacated and remanded by published opinion. Chief Judge
Traxler wrote the opinion, in which Judge King and Senior
Judge Friedman joined.
2 UNITED STATES v. THOMAS
COUNSEL
ARGUED: John Byron, WAKE FOREST UNIVERSITY,
School of Law, Winston-Salem, North Carolina, for Appel-
lant. Amy Elizabeth Ray, OFFICE OF THE UNITED
STATES ATTORNEY, Asheville, North Carolina, for Appel-
lee. ON BRIEF: John J. Korzen, Director, Caroline B.
Payseur, WAKE FOREST UNIVERSITY, School of Law,
Appellate Advocacy Clinic, Winston-Salem, North Carolina,
for Appellant. Anne M. Tompkins, United States Attorney,
Charlotte, North Carolina, for Appellee.
OPINION
TRAXLER, Chief Judge:
Danny Keith Thomas appeals an order of the district court
dismissing as untimely his pro se motion to vacate, set aside,
or correct his sentence under 28 U.S.C.A. § 2255 (West Supp.
2010). For the following reasons, we vacate the district
court’s order and remand the motion for further proceedings.
I.
On November 7, 2005, Thomas pleaded guilty pursuant to
a plea agreement to attempted possession of methamphet-
amine, in violation of 21 U.S.C.A. §§ 841(a)(1) and (b)(1)(C)
(West 1999 & Supp. 2010), and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C.A. § 924(c) (West 2000 & Supp. 2010). He was sen-
tenced to 30 months imprisonment on the methamphetamine
charge, and 60 months imprisonment on the firearm charge,
to be served consecutively. Judgment was entered on August
30, 2006, and no appeal was taken.
On October 10, 2008, Thomas filed a pro se motion under
28 U.S.C.A. § 2255, seeking to vacate his § 924(c) firearm
UNITED STATES v. THOMAS 3
conviction and correct his sentence. Thomas acknowledged
that the motion would be barred under the general one-year
limitations period of § 2255, see 28 U.S.C.A. § 2255(f)(1),
but asserted that his motion was timely under the alternative
limitations period set forth in 28 U.S.C.A. § 2255(f)(3),
because he was filing it within one year of the Supreme
Court’s decision in Watson v. United States, which held that
"a person does not ‘use’ a firearm under § 924(c)(1)(A) when
he receives it in trade for drugs." 552 U.S. 74, 83 (2007).
Prior to receiving a response from the government, the dis-
trict court dismissed the petition as untimely under
§ 2255(f)(1) and rejected Thomas’s claim that his motion was
timely under § 2255(f)(3). The district court held that Watson
did not announce a new rule of constitutional law and, in any
event, the Supreme Court had not made the holding in Watson
retroactively applicable to cases on collateral review. We sub-
sequently appointed counsel to represent Thomas and granted
a certificate of appealability to consider the issue of whether
Watson announced a new rule of law that applies retroactively
to cases on collateral review for purposes of § 2255(f)(3).
On appeal, the government agrees with Thomas that the
Supreme Court recognized a new rule in Watson and that it
is retroactively applicable to cases on collateral review. How-
ever, the government contends that we should affirm the dis-
trict court’s decision because Thomas procedurally defaulted
his Watson claim by failing to raise it on direct appeal and
cannot establish cause and prejudice, or actual innocence, to
excuse his default.
II.
A.
Under 28 U.S.C.A. § 2255, federal prisoners "claiming the
right to be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of the United
4 UNITED STATES v. THOMAS
States" may move the district "court which imposed the sen-
tence to vacate, set aside or correct the sentence." 28 U.S.C.A.
§ 2255(a). Section 2255(f) imposes a one-year limitations
period upon the filing of § 2255 motions, which usually runs
from "the date on which the judgment of conviction becomes
final." 28 U.S.C.A. § 2255(f)(1). Section 2255(f)(3), however,
provides that the one-year limitations period begins to run
from "the date on which the right asserted was initially recog-
nized by the Supreme Court, if that right has been newly rec-
ognized by the Supreme Court and made retroactively
applicable to cases on collateral review." 28 U.S.C.A.
§ 2255(f)(3).
Although acknowledging that his § 2255 motion would be
untimely under § 2255(f)(1) because it was filed more than
one year after his judgment of conviction became final,
Thomas asserts that his § 2255 motion is timely under
§ 2255(f)(3), because it was filed within one year of the
Supreme Court’s decision in Watson, see Dodd v. United
States, 545 U.S. 353, 357-58 (2005) (holding that the one-
year limitations period runs "from the date on which the right
. . . was initially recognized by th[e] [Supreme] Court"),
which he also contends we should apply retroactively to his
motion. The government agrees. However, the district court
rejected the claim, apparently of the view that a prisoner may
not take advantage of § 2255(f)(3) unless the Supreme Court
has made a new rule of constitutional law retroactively appli-
cable to cases on collateral review.
In United States v. Sanders, 247 F.3d 139 (4th Cir. 2001),
we "assume[d], without deciding, that a circuit court can
declare a new rule retroactive on collateral review in an initial
§ 2255 petition." Id. at 146 n.4. In doing so, we noted the con-
trast in the statutory language governing retroactivity for pur-
poses of § 2255(f)(3) and the statutory language governing
retroactivity for the purposes of filing a "second or succes-
sive" motion in § 2255(h). Id. Unlike in the former, which ref-
erences a "right [that] has been newly recognized by the
UNITED STATES v. THOMAS 5
Supreme Court and made retroactively applicable to cases on
collateral review," 28 U.S.C.A. § 2255(f)(3) (emphasis
added), the latter specifically provides that "[a] second or suc-
cessive motion must be certified as provided in section 2244
by a panel of the appropriate court of appeals to contain . . .
a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable," 28 U.S.C.A. § 2255(h)(2) (emphasis added).1
We also noted, however, that "the language of subsection
[(f)](3) can also be read to require the Supreme Court to make
the decision on retroactivity before a petitioner may file an
initial § 2255 motion." Sanders, 247 F.3d at 146 n.4; but see
Dodd, 545 U.S. at 365-366 n.4 (Stevens, J., dissenting) (not-
ing but disagreeing with the assumption made by the majority
in Dodd and "every Circuit to have addressed the issue," "that
the decision to make a new rule retroactive for purposes of
this section can be made by any lower court," rather than
"only [by] the Supreme Court" (first emphasis added)).
We now join those circuits that have considered the issue
and hold that § 2255(f)(3) does not require that the initial
retroactivity question be decided in the affirmative only by the
Supreme Court. See Wiegand v. United States, 380 F.3d 890,
892 (6th Cir. 2004) (holding that "any federal court can make
the retroactivity decision" for purposes of § 2255(f)(3)); Dodd
v. United States, 365 F.3d 1273, 1278 (11th Cir. 2004) (noting
that "every circuit to consider this issue has held that a court
other than the Supreme Court can make the retroactivity deci-
sion for purposes of § 2255[(f)](3)"), aff’d 545 U.S. 353
1
See In re Vial, 115 F.3d 1192, 1197 (4th Cir. 1997) (noting that, for
purposes of filing a successive § 2255 motion, "a new rule of constitu-
tional law has been ‘made retroactive to cases on collateral review by the
Supreme Court’ within the meaning of § 2255 only when the Supreme
Court declares the collateral availability of the rule in question, either by
explicitly so stating or by applying the rule in a collateral proceeding");
cf. Tyler v. Cain, 533 U.S. 656, 662 (2001) (interpreting phrasing in
§ 2244(b)(2)(A) that is nearly identical to § 2255(h) as requiring that the
Supreme Court make the initial retroactivity determination).
6 UNITED STATES v. THOMAS
(2005); United States v. Swinton, 333 F.3d 481, 486, 487 (3d
Cir. 2003) (concluding that "the statute of limitations provi-
sion of § 2255 allows district courts and courts of appeals to
make retroactivity decisions" and that this "may be essential
to put the question before the Supreme Court for final resolu-
tion"); Fischer v. United States, 285 F.3d 596, 599-600 (7th
Cir. 2002) (noting that "district and appellate courts, no less
than the Supreme Court, may issue opinions holding that a
decision applies retroactively to cases on collateral review"
(internal quotation marks and alteration omitted)); United
States v. Lopez, 248 F.3d 427, 432 (5th Cir. 2001) (holding
that section 2255(f)(3) "does not require that the retroactivity
determination must be made by the Supreme Court itself").
B.
Having determined that § 2255(f)(3) allows us to make the
initial determination of retroactivity, we turn to the question
of whether the decision in Watson announced a new rule of
law that applies retroactively to cases on collateral review.
Generally speaking, when the Supreme Court announces "a
‘new rule,’ that rule applies to all criminal cases still pending
on direct review." Schriro v. Summerlin, 542 U.S. 348, 351
(2004) (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987)).
Where a conviction is "already final, however, the rule applies
only in limited circumstances." Schriro, 542 U.S. at 351. New
procedural rules apply retroactively to cases on collateral
review only if they fall within the "small set of watershed
rules of criminal procedure implicating the fundamental fair-
ness and accuracy of the criminal proceeding." Id. at 352
(internal quotation marks omitted); see also Saffle v. Parks,
494 U.S. 484, 495 (1990). This is because such rules "regulate
only the manner of determining the defendant’s culpability."
Schriro, 542 U.S. at 353. "They do not produce a class of per-
sons convicted of conduct the law does not make criminal, but
merely raise the possibility that someone convicted with use
UNITED STATES v. THOMAS 7
of the invalidated procedure might have been acquitted other-
wise." Id. at 352.
"New substantive rules," in contrast, "generally apply retro-
actively. This includes decisions that narrow the scope of a
criminal statute by interpreting its terms, as well as constitu-
tional determinations that place particular conduct or persons
covered by the statute beyond the State’s power to punish."
Id. at 351-52 (citation omitted); see also Saffle, 494 U.S. at
495 (noting that rules that "decriminalize a class of conduct
[or] prohibit the imposition of [certain] punishment on a par-
ticular class of persons" are substantive in nature). "A rule is
substantive rather than procedural if it alters the range of con-
duct or the class of persons that the law punishes." Schriro,
542 U.S. at 353. "Such rules apply retroactively because they
necessarily carry a significant risk that a defendant stands
convicted of an act that the law does not make criminal or
faces a punishment that the law cannot impose upon him." Id.
at 352 (internal quotation marks omitted).
Under 18 U.S.C.A. § 924(c)(1)(A)(i), "any person who,
during and in relation to a crime of violence or drug traffick-
ing crime . . . uses or carries a firearm, or who, in furtherance
of any such crime, possesses a firearm, shall, in addition to
the punishment provided for such crime of violence or drug
trafficking crime . . . be sentenced to a term of imprisonment
of not less than 5 years." Id.
In Smith v. United States, the Supreme Court held that a
person "uses" a firearm under § 924(c)(1)(A) when he trades
his firearm for drugs. 508 U.S. 223, 237 (1993). The firearm
is being "used" for purposes of the statute, under the plain
meaning of that term, when a defendant uses it "as an item of
barter or commerce" to purchase drugs. Id. In Watson, how-
ever, the Supreme Court distinguished Smith and reached a
different result for the converse situation, holding that "a per-
son does not ‘use’ a firearm under § 924(c)(1)(A) when he
8 UNITED STATES v. THOMAS
receives it in trade for drugs." Watson, 552 U.S. at 83 (empha-
sis added).
The district court held that the Supreme Court in Watson
did not announce a new rule of constitutional law for purposes
of § 2255(f)(3) because it merely interpreted the meaning of
the term "use" in § 924(c)(1)(A). This is true. However,
§ 2255(f)(3) requires only that the Supreme Court initially
recognize the claimed new "right to be released upon the
ground that the sentence was imposed in violation of the Con-
stitution or laws of the United States." 28 U.S.C.A. § 2255(a)
(emphasis added). Furthermore, the Supreme Court in Watson
plainly interpreted the term "use" in such a way as to "narrow
[its] scope" and, in doing so, "place[d] particular conduct . . .
beyond the [government’s] power to punish" under
§ 924(c)(1)(A). Schriro, 542 U.S. at 351-52. Thus, the rule
announced by the Watson Court effectively "decriminal-
ize[d]," for purposes of the "use" prong of § 924(c), "a class
of conduct." Saffle, 494 U.S. at 495. A defendant may not be
convicted of using a firearm in furtherance of a drug traffick-
ing offense under § 924(c) if he merely receives the gun in
exchange for drugs. See Watson, 552 U.S. at 83. And, because
this conduct is beyond the scope of § 924(c)(1)(A), a defen-
dant convicted under such facts would "stand[ ] convicted of
an act that the law does not make criminal" and serve "a pun-
ishment that the law cannot impose upon him." Schriro, 542
U.S. at 352 (internal quotation marks omitted). Accordingly,
we hold that the right announced in Watson is a new substan-
tive right which must be applied retroactively to cases on col-
lateral review for purposes of § 2255(f)(3).
III.
We turn now to the government’s claim that we should
nevertheless affirm the district court’s dismissal of the § 2255
motion on the basis of procedural default. See Bousley v.
United States, 523 U.S. 614, 622 (1998) ("Where a defendant
has procedurally defaulted a claim by failing to raise it on
UNITED STATES v. THOMAS 9
direct review, the claim may be raised in habeas only if the
defendant can first demonstrate either cause and actual preju-
dice, or that he is actually innocent." (citations and internal
quotation marks omitted)). Specifically, the government
asserts that Thomas cannot demonstrate "cause" for the
default because the legal basis for a Watson-type claim was
recognized and available at the time Thomas could have
noticed a direct appeal. The government also asserts that
Thomas cannot demonstrate prejudice or actual innocence (1)
because Thomas pled guilty to the "possession" prong and not
the "use" prong of § 924(c), rendering Watson inapplicable to
his case, and (2) in any event, because Thomas did not trade
drugs for the firearm (which might entitle him to take advan-
tage of Watson’s interpretation of the "use" provision), but
rather was convicted based upon his intent to trade a firearm
for drugs (which remains punishable under the "use" prong
pursuant to its interpretation in both Smith and Watson).2
Under § 2255(b), "[u]nless the motion and the files and
records of the case conclusively show that the prisoner is enti-
2
Between the decisions in Smith and Watson, the Supreme Court
decided Bailey v. United States, 516 U.S. 137 (1995), also interpreting the
"use" provision of § 924(c) and holding that a defendant does not "use" a
firearm during and in relation to a drug-trafficking activity unless he
actively employs the firearm. See id. at 147-51. In response, Congress
amended § 924(c) to also criminalize possession of a firearm in further-
ance of drug trafficking crimes. See Watson, 552 U.S. at 83. In Watson,
the Supreme Court declined to reach the question of whether a defendant
"possesses" a firearm in furtherance of a drug trafficking crime when he
receives a firearm in exchange for drugs. See id.; see also United States
v. Jenkins, 566 F.3d 160, 162 n.1 (4th Cir. 2009) (noting that Watson
addressed only the meaning of the phrase "uses" a firearm in 18 U.S.C.A.
§ 924(c), and not possession of a firearm). However, in a recent decision,
we followed those circuit courts that have addressed the issue since Wat-
son and held that drugs-for-firearms trades do fall within § 924(c)’s pos-
session prong. See United States v. Robinson, No. 09-4276, 2010 WL
4869770, ___ F.3d ___ (4th Cir. 2010); see also United States v. Gurka,
605 F.3d 40, 41 (1st Cir. 2010); United States v. Gardner, 602 F.3d 97,
103 (2d Cir. 2010); United States v. Doody, 600 F.3d 752, 754-55 (7th Cir.
2010); United States v. Mahan, 586 F.3d 1185, 1189 (9th Cir. 2009).
10 UNITED STATES v. THOMAS
tled to no relief," the court must grant a prompt hearing to
"determine the issues and make findings of fact and conclu-
sions of law with respect thereto." Id. So far as they go, the
records in this case indicate that Thomas was charged in the
indictment with "knowingly and unlawfully us[ing] and carry-
[ing] a firearm" in furtherance of the drug trafficking crime
and with "possess[ing] said firearm," in violation of 18
U.S.C.A. § 924(c). S.J.A. 2. It appears that Thomas agreed in
the Plea Agreement to enter a voluntary plea of guilty to "at-
tempted possession of methamphetamine, in violation of 21
U.S.C. §§ 846 and 841(b)(1)(C), and possession of a firearm
in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)." S.J.A. 3 (emphasis added). However, the
judgment of conviction relates the offense of conviction as
"[u]sing and carrying a firearm during and in relation to a
drug trafficking crime," in violation of § 924(c). S.J.A. 15.
Thomas’s pro se § 2255 motion does little to enlighten us
about the details of Thomas’s plea or the merits of the specific
claim he intended to raise in his § 2255 motion. Thomas’s
reliance upon Watson for purposes of § 2255(f)(3) suggests he
intends to claim that he only pleaded guilty to "using" a fire-
arm, and that he traded drugs for the firearm in question.
However, Thomas only summarily contends that the firearm
in question "was not in ‘use’ as a firearm ‘during and in rela-
tion to . . . a drug trafficking crime’ for purposes of . . .
§ 924(c)(1)(A)," J.A. 12, and he often appears to rely more
upon Bailey v. United States, 516 U.S. 137 (1995), and the
Supreme Court’s decision in Smith, as authority for his claim
that the 924(c) conviction should be invalidated. We also note
that, in his affidavit accompanying the pro se § 2255 motion,
Thomas avers that the "firearm . . . was being used to pur-
chase an illegal substance and represented merely a ‘medium
of exchange.’" J.A. 14. And the Presentence Report states that
"Thomas admitted that he intended to trade the assault-type
SKS 7.62 caliber rifle to [his methamphetamine supplier] in
exchange for 3.5 grams of methamphetamine." S.J.A. 23.
However, we do not have either the plea or sentencing tran-
UNITED STATES v. THOMAS 11
scripts which might be available and of benefit to either
Thomas or the government regarding the precise nature of the
claim and whether Thomas can even take advantage of Wat-
son at all.
To conclude, because Thomas’s filings in the district court
were pro se and the district court dismissed the § 2255 motion
as untimely without obtaining a response from the govern-
ment, the factual basis of Thomas’s precise claim is not
entirely clear from the motion. Indeed, Thomas’s claim may
not even encompass an argument that he only pled guilty to
"use" of the firearm and that he merely received the firearm
in trade for methamphetamine. Under the circumstances, we
think the better course is to simply vacate the district court’s
decision denying the motion as untimely and remand the mat-
ter to the district court for further consideration of the claim
and the parties’ respective arguments.
IV.
For the foregoing reasons, we vacate the district court’s
order dismissing Thomas’s § 2255 motion and remand to the
district court for further proceedings in accordance with this
decision.
VACATED AND REMANDED