Argued December 9, 2015
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. (5:08-cr-00004-D-1; 5:12-cv-00577-D). James C. Dever III, Chief District Judge.
Marianna F. Jackson, COVINGTON & BURLING, LLP, Washington, D.C., for Appellant.
Christopher Michael Anderson, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Robert A. Long, COVINGTON & BURLING, LLP, Washington, D.C., for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Seth M. Wood, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Before MOTZ and FLOYD, Circuit Judges, and John A. GIBNEY, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation. Judge Floyd wrote the opinion, in which Judge Motz and Judge Gibney joined.
FLOYD, Circuit Judge:
Appellant Richard Lee Adams (Adams) challenges his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Adams argues that he is actually innocent of the § 922(g) offense because he was not, at the time of the offense, a convicted felon. We agree and accordingly vacate his conviction and direct entry of judgment in his favor.
On January 2, 2008, a grand jury returned an eight count indictment against Adams alleging that he committed a series of armed robberies of convenience stores. In May 2009, Adams pleaded guilty pursuant to a written plea agreement to three of the eight counts: (1) robbery in violation of 18 U.S.C. § 1951 (Count 2); (2) using and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) (Count 3); and (3) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (Count 8). The plea agreement contained a provision in which Adams waived his right to challenge his conviction or sentence in a motion pursuant to 28 U.S.C. § 2255 unless he did so on the basis of ineffective assistance of counsel or prosecutorial misconduct. Before accepting Adams's guilty plea, the district court held a colloquy pursuant to Federal Rule of Criminal Procedure 11. The district court singled out the waiver provision " in particular" and read it to Adams. J.A. 50. Adams indicated that he understood the appellate ...