RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Wiegand v. United States No. 02-1740
ELECTRONIC CITATION: 2004 FED App. 0269A (6th Cir.)
File Name: 04a0269a.06 Court’s decision in Jones v. United States, 529 U.S. 848
(2000)—decided after Wiegand’s conviction—established a
new AEDPA limitations period.
UNITED STATES COURT OF APPEALS
I
FOR THE SIXTH CIRCUIT
_________________ A federal jury found Wiegand guilty of several offenses,
including arson. We affirmed his conviction on direct appeal.
RICHARD LEE WIEGAND , X United States v. Wiegand, No. 93-1735, 1994 WL 714347, at
Petitioner-Appellant, - *1 (6th Cir. Dec. 22, 1994) (unpublished). Several years
- later, Wiegand moved to vacate his sentence under 28 U.S.C.
- No. 02-1740 § 2255 on the ground that his arson conviction was not
v. - supported by sufficient evidence in light of Jones. A
> magistrate judge recommended the court deny his motion
, because the AEDPA statute of limitations barred his claims.
UNITED STATES OF AMERICA , -
Respondent-Appellee. - After reviewing Wiegand’s objections, the district court
adopted the magistrate’s report and recommendation. The
N district court granted a certificate of appealability with respect
Appeal from the United States District Court to Wiegand’s challenge to his arson conviction. Another
for the Western District of Michigan at Lansing panel affirmed the district court’s decision, Wiegand v. United
No. 00-00496—David W. McKeague, District Judge. States, 70 Fed. Appx. 312 (6th Cir. 2003), but granted
Wiegand’s petition for rehearing.
Decided and Filed: August 19, 2004
II
Before: DAUGHTREY, GIBBONS, and COOK, Circuit
Judges. The issue certified for appeal is whether Wiegand’s
challenge to his arson conviction is barred by the AEDPA’s
______________________ one-year statute of limitations. Wiegand and the United
States agree the AEDPA limitations period does not bar his
AMENDED OPINION motion.
______________________
Section 2255 authorizes a federal prisoner to move the
COOK, Circuit Judge. Richard Wiegand appeals the district court to vacate his sentence. 28 U.S.C. § 2255 ¶ 1.
district court’s dismissal of his motion to vacate his sentence The AEDPA established a one-year limitations period for
under 28 U.S.C. § 2255. The district court decided Wiegand § 2255 motions, generally running from “the date on which
failed to file his motion within the Antiterrorism and the judgment of conviction becomes final.” § 2255 ¶ 6(1).
Effective Death Penalty Act of 1996 (“AEDPA”) limitations But the AEDPA established alternative limitations periods,
period. We reverse the district court’s decision and remand including one for new rights the Supreme Court recognizes
for the district court to determine whether the Supreme after the prisoner’s conviction becomes final:
1
No. 02-1740 Wiegand v. United States 3 4 Wiegand v. United States No. 02-1740
A 1-year period of limitation shall apply to a motion signifies “active employment.” Jones, 529 U.S. at 855 (citing
under this section. The limitation period shall run from Bailey, 516 U.S. at 143, 145).
the latest of —
When we considered whether Bailey applied retroactively,
... we canvassed the circuits and identified four different
retroactivity approaches: (1) only the Supreme Court can
(3) the date on which the right asserted was initially make the retroactivity decision; (2) a circuit court can make
recognized by the Supreme Court, if that right has been the retroactivity decision; (3) any inferior federal court can
newly recognized by the Supreme Court and made make the retroactivity decision; and (4) not deciding the issue
retroactively applicable to cases on collateral review; because the defendant moved to vacate within one year of
.... Bousley v. United States, 523 U.S. 614 (1998). Pryor v.
United States, 278 F.3d 612, 615-16 (6th Cir. 2002). We
28 U.S.C. § 2255 ¶ 6(3). adopted the fourth approach and declined to decide whether
a court other than the Supreme Court could make the
Wiegand claims—and the United States agrees—that his retroactivity decision because of the unique circumstances
motion was timely under § 2255 ¶ 6(3) because he filed it involved in that case. Confronted with this question again
within one year of the Supreme Court’s decision in Jones. here, we decide that any federal court can make the
Wiegand can avail himself of ¶ 6(3) if Jones created a right retroactivity decision, the third Pryor alternative.
that has been newly “recognized by the Supreme Court and
made retroactively applicable to cases on collateral review.” The language of ¶ 6(3) belies the conclusion that only the
§ 2255 ¶ 6(3). The district court concluded that ¶ 6(3) did not Supreme Court could decide retroactivity. As numerous
apply because Jones had not been “made retroactively courts have noted, if Congress intended that result, then it
applicable to cases on collateral review” and that it could not would have utilized the same language it used in § 2255
decide Jones applied retroactively, leaving that decision to ¶ 8(2). The second and third Pryor positions recognize that
this court or the Supreme Court. We disagree with the district a court other than the Supreme Court can decide retroactivity.
court’s conclusion that it could not decide whether Jones The difference between these positions is whether a district
applies retroactively and we remand to the district court to court can decide retroactivity or whether only a circuit court
make this decision. can make that decision. A number of circuits have considered
this question since we decided Pryor.
III
The Third Circuit decided that either a district court or
Jones restricted the scope of the federal arson statute, circuit court can make the retroactivity decision. United
decriminalizing conduct that courts previously viewed as States v. Swinton, 333 F.3d 481, 486 (3d Cir. 2003).
within the statute’s reach. Jones parallels the Supreme Permitting a district court or circuit court to make the decision
Court’s decision in Bailey v. United States, 516 U.S. 137, 143 “may be essential to put the question before the Supreme
(1995) (holding that a conviction for using a firearm in Court for final resolution.” Id. at 486 (citing Ashley v. United
relation to a drug offense requires evidence to show the States, 266 F.3d 671, 673 (7th Cir. 2001)). The Swinton court
defendant’s active employment of the firearm). In fact, Jones “conclude[d] - and the parties agree[d] - that the statute of
relied on Bailey for its conclusion that “use” in the statute limitations provision of § 2255 allows district courts and
No. 02-1740 Wiegand v. United States 5
courts of appeals to make retroactivity decisions.” 333 F.3d
at 487. The Eleventh Circuit reached the same conclusion
earlier this year, recognizing that “every circuit to consider
this issue has held that a court other than the Supreme Court
can make the retroactivity decision for purposes of § 2255
[¶6](3).” Dodd v. United States, 365 F.3d 1273, 1278 (11th
Cir. 2004) (citing decisions from the Third, Fifth, Seventh,
and Eleventh Circuits and ultimately concluding that the
limitations period began to run on the date of the Supreme
Court decision even though it recognized a district court
could decide the retroactivity question).
IV
The district court here should decide retroactivity in the
first instance. If the district court finds Wiegand filed timely,
then it can address the merits of his claim. This procedure
will produce a more efficient resolution of retroactivity
issues; committing the timeliness decision to the district court
rather than the circuit court avoids a second round of
proceedings on remand to consider the merits of the
petitioner’s claim. We thus reverse the district court’s
judgment and remand for the district court to consider
whether Jones applies retroactively. If the district court
decides Jones applies retroactively, it should consider the
merits of Wiegand’s claim and any procedural defenses the
United States raises.