United States v. Kirksey Nix, Jr.
694 F. App'x 287
| 5th Cir. | 2017Background
- Kirksey McCord Nix, Jr. was convicted by a jury of three counts of conspiracy to possess marijuana with intent to distribute (21 U.S.C. § 846) and one count of aiding and abetting interstate transportation in aid of unlawful activity (18 U.S.C. § 1952(a) and § 2).
- His convictions were affirmed on direct appeal. Over 20 years later (March 2015), Nix filed a pro se 28 U.S.C. § 2255 motion challenging his convictions based on Rosemond v. United States.
- Rosemond clarified the mens rea for aiding and abetting a § 924(c) firearms offense requires the defendant to have advance knowledge that a confederate will carry a gun.
- The district court dismissed Nix’s § 2255 motion as time-barred and held Rosemond did not apply to his convictions (which did not involve § 924(c)); it denied a certificate of appealability and IFP as moot.
- Nix appealed; this court granted a COA limited to timeliness under § 2255 and whether Rosemond extends beyond § 924(c) aiding-and-abetting cases.
- The Fifth Circuit affirmed: Nix failed to show Rosemond was retroactively applicable, and in any event Rosemond did not alter the outcome because the record showed Nix had advance knowledge of the § 1952(a) offense's scope.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under 28 U.S.C. § 2255(f)(3) | Nix: Rosemond is a new Supreme Court rule that resets the one-year limitations period | Gov: Rosemond is not a newly recognizable, retroactive rule for collateral review in Nix’s case | Held: Nix did not demonstrate Rosemond’s retroactivity; § 2255 motion time-barred |
| Scope of Rosemond | Nix: Rosemond’s advance-knowledge rule applies to aiding-and-abetting liability generally, including § 1952(a) | Gov: Rosemond addressed § 924(c) firearms aiding-and-abetting and should not be extended | Held: Rosemond was limited to § 924(c) context; even if applied, record shows Nix had advance knowledge |
| Merits of aiding-and-abetting claim | Nix: Lack of requisite intent/advance knowledge negates aiding-and-abetting conviction | Gov: Record evidence shows Nix had advance knowledge of the criminal scheme | Held: Evidence indicates Nix had advance knowledge; aiding-and-abetting conviction stands |
| Certificate of Appealability (COA) | Nix: COA should issue to review timeliness and Rosemond scope | Gov: COA not warranted because issues lack merit | Held: COA granted narrowly for appeal; district court’s denial of relief affirmed |
Key Cases Cited
- Rosemond v. United States, 134 S. Ct. 1240 (2014) (clarified advance-knowledge mens rea for aiding-and-abetting a § 924(c) firearm offense)
- Olvera v. United States, 775 F.3d 726 (5th Cir. 2015) (standard of review for § 2255 factual findings and legal conclusions)
- Redd v. United States, 562 F.3d 309 (5th Cir. 2009) (procedural law on § 2255 review)