Argued September 17, 2014
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. (5:03-cr-00249-BR-1). W. Earl Britt, Senior District Judge.
Benjamin Paul Fryer,
MOORE & VAN ALLEN PLLC, Charlotte, North Carolina, for Appellant.
Shailika K. Shah, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Benjamin M. Pickett,
MOORE & VAN ALLEN PLLC, Charlotte, North Carolina; Adam H. Charnes, Richard D. Dietz, KILPATRICK TOWNSEND & STOCKTON LLP, Winston-Salem, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Before MOTZ and FLOYD, Circuit Judges, and DAVIS, Senior Circuit Judge. Judge Motz wrote the majority opinion, in which Senior Judge Davis joined. Judge Floyd wrote a separate opinion dissenting in part and concurring in the judgment.
DIANA GRIBBON MOTZ, Circuit Judge:
Thomas Andrew Mills, Sr. petitioned the district court for a certificate of actual innocence after his felon-in-possession conviction was vacated. A court may grant such a certificate, a prerequisite for recovering from the Government compensation for wrongful incarceration, only in those rare cases in which it finds a previously convicted defendant to be truly innocent. The district court determined that this is not such a case and denied Mills's petition. We affirm.
On January 22, 2003, Mills sold a rifle and a shotgun, both of which had been stolen, to the owner of a pawn shop in North Carolina. Mills had a lengthy criminal history, including seven prior North Carolina felony convictions for breaking and entering and one conviction for larceny. A federal jury in the Eastern District of North Carolina convicted Mills of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and § 924 (2012). The district court sentenced Mills to 180 months' imprisonment.
Following our decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), Mills filed a 28 U.S.C. § 2241 motion for writ of habeas corpus. He argued that Simmons rendered his conviction for being a felon in possession in violation of § 922(g)(1) improper. The Government did not oppose the motion. Accordingly, on October 4, 2012, the district court granted Mills's § 2241 motion and vacated his conviction in light of Simmons. The court ruled that his seven prior North Carolina convictions, although felonies under state law, did not constitute felonies for purposes of 18 U.S.C. § 922(g)(1) because Mills could not have been imprisoned for more than one year for any of them.
On January 31, 2013, Mills moved for a certificate of actual innocence under 28 U.S.C. § 2513 (2012). A person must obtain such a certificate before recovering damages from the Government for unjust imprisonment under 28 U.S.C. § 1495 (2012). The Government moved to dismiss Mills's motion for a certificate of innocence, contending that Mills had failed to prove two of the three required predicates for such a certificate. The district court denied Mills's motion. United States v. Mills, 2013 WL 3864304 (E.D.N.C. July 24, 2013). Mills then filed this appeal.
Section 2513, the " unjust convictions and imprisonment statute," provides in pertinent part:
(a) Any person suing under section 1495 of this title must allege and prove that:
(1) His conviction has been reversed or set aside on the ground that he is not guilty of the offense of which he was convicted, or on new trial or rehearing he was found not guilty of such offense, as appears from the record or certificate
of the court setting aside or reversing such conviction, or that he has been pardoned upon the stated ground of innocence and unjust conviction and
(2) He did not commit any of the acts charged or his acts, deeds, or omissions in connection with such charge constituted no offense against the United States, or any State, Territory or the District of Columbia, and he did not by misconduct or neglect cause or bring about his own prosecution.
The plain language of § 2513(a) thus requires a petitioner to both " allege and prove" three predicates. See United States v. Graham, 608 F.3d 164 (4th Cir. 2010). First, the petitioner must establish that the record of the court setting aside or reversing his conviction demonstrates that the court did so on the ground that he is not guilty of the offense for which he was convicted. Second, the petitioner must prove that he did not commit any of the acts charged, or that those acts or related acts constituted no crime against the United States, or any State, Territory or the District of Columbia. Third, the petitioner must demonstrate that he did not by misconduct or neglect cause or bring about his own prosecution.
Although § 2513 has been in effect for many years, we have had the opportunity to examine it only once before. In Graham, we recognized that " Congress clearly did not provide in the unjust conviction and imprisonment act an avenue for monetary compensation to all whose criminal convictions are reversed after incarceration." Id. at 171. Rather, the provisions of § 2513 work in tandem to ensure that only a truly innocent petitioner is eligible for a certificate of innocence and subsequent compensation from the Government. As the Seventh Circuit recently noted,
[m]any people believe that persons who spend time in prison without a valid conviction should be compensated. That is not, however, what § 1495 and § 2513 [the unjust conviction statutes] do. They compensate only persons who are actually innocent -- whether because they did not do what the indictment charged or because what they did is not a crime.
Pulungan v. United States, 722 F.3d 983, 985 (7th Cir. 2013).
A district court has " substantial discretion" when determining whether to grant or deny a certificate of innocence pursuant to 18 U.S.C. § 2513. Graham, 608 F.3d at 166. We affirm such a denial " unless the [district] court abused its discretion, or unless the findings underlying its decision were clearly erroneous." Id. at 172 (quoting Betts v. United States, 10 F.3d 1278, 1283 (7th Cir. 1993)) (internal quotation marks omitted).
In this case, the district court recognized that Mills satisfied the first predicate but denied the certificate of innocence on the ground that Mills failed to carry his " rigorous burden" with respect to the third predicate.
Mills, 2013 WL 3864304 at *4. We may affirm, however, on the ground that Mills failed to establish any one of the three predicates. See, e.g., United States v. Moore, 709 F.3d 287, 293 (4th Cir. 2013). Because we conclude that Mills did not ...