Gordon Miller v. United States, 735 F.3d 141

Miller was convicted in 2008 of one count of possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), and sentenced to 72 months; he did not appeal.
His prior North Carolina convictions (possession of cocaine; threatening a court officer) carried maximum sentences of six to eight months under North Carolina’s Structured Sentencing Act.
In 2012 Miller filed a 28 U.S.C. § 2255 motion arguing that under this Court’s en banc decision in United States v. Simmons he was not a felon for § 922(g)(1) purposes because his prior convictions could not have exposed him to more than one year.
The government agreed and waived timeliness; the district court denied relief, relying on United States v. Powell (which held Carachuri was procedural and not retroactive).
The Fourth Circuit granted a COA and, rejecting Powell’s applicability here, held Simmons announced a new substantive rule that is retroactive and vacated Miller’s conviction.

Issue	Plaintiff's Argument	Defendant's Argument (Amicus/District Court)	Held
Whether Simmons’ rule narrowing what prior NC convictions count for § 922(g)(1) is retroactive on collateral review	Simmons announced a substantive rule that narrows the class of persons the statute punishes; thus it is retroactive and Miller is actually innocent	Powell controls: Carachuri (and its application) is procedural and not retroactive, so Simmons should not apply retroactively	Simmons announced a substantive rule; it is retroactive; Miller’s § 2255 petition must be granted and conviction vacated
Whether Simmons merely applied Carachuri (a procedural decision) so Powell bars relief	Simmons created a new substantive limitation beyond Carachuri’s procedural holding	Powell held Carachuri procedural and nonretroactive; district court relied on Powell	Court distinguishes Powell: Powell did not address whether Simmons itself announced a substantive rule; Simmons did so and is retroactive
Whether a COA was properly granted to consider this due-process claim	Miller asserts due process where conduct is not criminal under federal law	Amicus argued COA improper	COA appropriate because a conviction for conduct the law does not make criminal denies due process; review permitted
Remedy — what relief should be given if Simmons is retroactive	Vacatur of conviction and remand to grant § 2255 relief	—	Vacated and remanded with instruction to grant Miller’s § 2255 petition

United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc) (narrowed § 922(g)(1) predicate analysis under NC law to look at the individual’s actual exposure to >1 year)
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) (analyzed whether prior conviction’s maximum authorized term—based on the actual conviction—controls for enhancement/immigration)
United States v. Powell, 691 F.3d 554 (4th Cir. 2012) (held Carachuri announced a procedural rule not retroactive on collateral review)
Bousley v. United States, 523 U.S. 614 (1998) (collateral-attack retroactivity principles; actual-innocence framework)
Schriro v. Summerlin, 542 U.S. 348 (2004) (distinguishing substantive from procedural new rules for retroactivity)
Bailey v. United States, 516 U.S. 137 (1995) (example of a decision that narrowed a criminal statute’s scope and was held substantive/retroactive)
Watson v. United States, 552 U.S. 74 (2007) (narrowing § 924(c)(1) and treated as substantive for collateral purposes)
United States v. Harp, 406 F.3d 242 (4th Cir. 2005) (pre-Simmons approach looking to hypothetical maximum aggravated sentence)
Buggs v. United States, 153 F.3d 439 (7th Cir. 1998) (COA appropriate where conviction rests on conduct law does not criminalize)