United States v. Robert Hairston, 754 F.3d 258

Robert Earl Hairston pled guilty in 2003 to conspiracy to possess with intent to distribute narcotics; the PSR used a 1991 North Carolina "No Operator’s License" conviction to place him in Criminal History Category IV and a Guidelines range of 324–405 months.
Hairston objected to inclusion of the 1991 conviction at sentencing but could not disprove it; the district court adopted the PSR and sentenced him (sentence later reduced due to Guidelines amendments and other proceedings).
Hairston filed a § 2255 motion within a year after sentencing raising other constitutional claims; that motion was denied. He continued pursuing state-court relief to vacate the 1991 conviction.
In 2011 a North Carolina state court vacated the No Operator’s License conviction for lack of counsel; Hairston then filed a second § 2255 motion seeking resentencing based on a reduced criminal history category and lower Guidelines range.
The district court dismissed the second § 2255 motion as an unauthorized "second or successive" petition under 28 U.S.C. §§ 2244(b)(3)(A) and 2255(h); Hairston obtained a COA on whether his numerically second motion was in fact second or successive.
The Fourth Circuit held Hairston’s motion was not "second or successive" because the factual predicate (vacatur of the state conviction) did not exist when his first § 2255 was filed and adjudicated; it reversed and remanded for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Hairston’s numerically second § 2255 motion is a “second or successive” petition under § 2255(h)	Hairston: motion is not successive because the vacatur of the state conviction (the basis for resentencing) occurred after and thus did not exist at the time of his first § 2255 motion	Government: the second motion is successive and requires court of appeals certification under § 2244/2255(h)	Court: Not successive where the facts giving rise to the claim did not exist when the first motion was filed and adjudicated; reversed and remanded
Whether the Government may rely on a plea waiver to bar Hairston’s § 2255 motion	Hairston: plea-waiver argument was forfeited because Government did not raise it in its appellate brief	Government: argued waiver should bar relief (but did not timely press the argument)	Court: Government waived the plea-waiver defense by failing to raise it in its informal brief; court enforces forfeiture

Johnson v. United States, 544 U.S. 295 (Supreme Court 2005) (vacatur of state conviction constitutes a new fact for § 2255 statute-of-limitations purposes)
Stewart v. United States, 646 F.3d 856 (11th Cir. 2011) (second § 2255 motion based on state-court vacatur not treated as successive when claim was unripe at first petition)
In re Weathersby, 717 F.3d 1108 (10th Cir. 2013) (same conclusion as Stewart)
In re Williams, 444 F.3d 233 (4th Cir. 2006) (not every numerically second petition is "second or successive")
Panetti v. Quarterman, 551 U.S. 930 (Supreme Court 2007) (a claim unripe at time of initial petition may avoid § 2244(b) restrictions)
In re Taylor, 171 F.3d 185 (4th Cir. 1999) (allowed numerically second § 2255 motion when claim arose after first motion)
Obeid v. United States, 707 F.3d 898 (7th Cir. 2013) (joins other circuits concluding claims that were not ripe earlier are not "second or successive")