Gregory Phillips v. United States
734 F.3d 573
6th Cir.2013Background
- Gregory A. Phillips, a U.S. citizen, pleaded guilty in 2005 to violating 18 U.S.C. § 2423(c) for engaging in illicit sexual conduct with a minor in Thailand; sentenced to 37 months and lifetime supervised release.
- Phillips’ travel to Thailand occurred in 2001; the illicit sexual conduct at issue occurred in 2004 (after § 2423(c) was enacted in 2003).
- Phillips filed a § 2255 motion in 2008 arguing that § 2423(c) applies only where both travel and illicit conduct occurred after the statute’s enactment, so his pre-enactment travel meant he was not criminally liable; he also raised an Ex Post Facto challenge.
- The district court denied relief on the merits, holding travel need not precede enactment so long as the illicit conduct was post-enactment. The court denied a COA; the Sixth Circuit granted a COA limited to the temporal-scope question.
- On appeal, the Sixth Circuit declined to reach the statutory-interpretation merits because Phillips’ § 2255 motion was untimely and he failed to establish an actual-innocence equitable exception based on an intervening, binding change in law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under § 2255(f) / equitable actual-innocence exception | Phillips argued Jackson and Carr announced a new interpretation of “travels” making his petition timely or equitably excused because his pre-enactment travel meant no crime | Govt. argued petition untimely; Jackson/Carr are not controlling Sixth Circuit or Supreme Court precedent as to § 2423(c) and do not establish actual innocence | Denied relief: petition untimely and actual-innocence exception fails because no binding intervening decision interpreted § 2423(c) to render his conduct non-criminal |
| Whether Jackson or Carr create a retroactive change of law applicable to § 2423(c) | Phillips relied on Ninth Circuit (Jackson) and Supreme Court SORNA decision (Carr) to argue "travels" is prospective | Govt. argued neither decision binds Sixth Circuit or interprets § 2423(c); Carr interprets a different statute (SORNA) | Court held Jackson is nonbinding out-of-circuit authority; Carr interpreted a different statute and its citation to Jackson is dicta — neither creates a controlling change making Phillips actually innocent |
| Applicability of Carr’s reasoning to the PROTECT Act (§ 2423(c)) | Carr’s sequential-elements and prospective reading of "travels" should analogously apply to § 2423(c) | Structural and contextual differences between SORNA § 2250 and PROTECT Act § 2423(c) preclude treating Carr as controlling on § 2423(c) | Court rejected extension of Carr to § 2423(c); declined to treat Carr’s footnote citation to Jackson as transforming Carr into precedent on § 2423(c) |
| Ex Post Facto claim | Phillips contended retroactive application of § 2423(c) to his pre-enactment travel violated Ex Post Facto clause | Govt. implicitly contended statute properly applied because illicit conduct occurred post-enactment; timeliness/actual-innocence issues precluded reaching merits | Court did not reach Ex Post Facto merits because timeliness/actual-innocence failure was dispositive |
Key Cases Cited
- McQuiggin v. Perkins, 133 S. Ct. 1924 (2013) (recognizing actual-innocence gateway can overcome AEDPA time bar)
- Bousley v. United States, 523 U.S. 614 (1998) (actual innocence can excuse procedural default; distinguishes factual and legal innocence inquiry)
- Carr v. United States, 130 S. Ct. 2229 (2010) (interpreting SORNA § 2250’s travel element as requiring post-enactment travel because elements read sequentially)
- United States v. Jackson, 480 F.3d 1014 (9th Cir. 2007) (held § 2423(c)’s present-tense “travels” and “engages” indicate prospective application to travel and conduct post-enactment)
- Wooten v. Cauley, 677 F.3d 303 (6th Cir. 2012) (setting forth Bousley-derived four-prong test for legal-innocence claims based on intervening statutory interpretation)
- Davis v. United States, 417 U.S. 333 (1974) (circuit-law changes interpreting Supreme Court precedent can be invoked in § 2255 proceedings)
- Logan v. United States, 434 F.3d 503 (6th Cir. 2006) (petitioners may rely on Supreme Court statutory decisions in § 2255 motions)