United States v. Thomas Mills, Sr., 2014 U.S. App. LEXIS 23058

Background

In 2003 Mills sold two stolen firearms; he had multiple prior North Carolina felony convictions and was federally indicted and convicted under 18 U.S.C. § 922(g)(1) for being a felon in possession.
After this Court’s en banc decision in United States v. Simmons, Mills filed § 2241 habeas; the government did not oppose and the district court vacated his § 922(g)(1) conviction because his prior state convictions did not meet the federal one-year-punishment definition of felony.
Mills then sought a certificate of actual innocence under 28 U.S.C. § 2513(a) to enable an action for damages under § 1495.
§ 2513(a) requires a petitioner to allege and prove three predicates: (1) conviction reversed on the ground of not guilty, (2) either (a) did not commit any of the acts charged or (b) the acts did not constitute any crime (federal or state), and (3) did not by misconduct or neglect bring about his own prosecution.
The district court found Mills satisfied the first predicate but denied the certificate, concluding Mills failed the rigorous burden on the third predicate; the government argued he also failed predicate two.
The Fourth Circuit majority affirmed on the alternative ground that Mills failed predicate two(a): he admitted possessing the firearms (an act charged), and his possession constituted a North Carolina offense, so he cannot obtain a certificate of actual innocence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
What does § 2513(a)(2)’s phrase “did not commit any of the acts charged” mean?	Mills: means petitioner must show he did not commit the crime charged (i.e., all elements of § 922(g)(1)); he was innocent of the only crime charged (felon-in-possession) after Simmons.	Government/Majority: “acts charged” refers to the physical acts alleged (e.g., possession); elements like felon status are separable and not themselves “acts.”	Majority: “acts charged” means the acts (possession) — petitioner must prove he did not commit any of them; elements/status are distinct. Dissent: reads “acts” as criminal acts (not elements) and would treat Mills as satisfying predicate 2(a).
Did Mills satisfy predicate 2(a) by showing he did not commit any of the acts charged?	Mills: He did not commit the charged federal offense (felon-in-possession) under Simmons, so he did not commit the act charged (possession while a felon).	Government/Majority: Mills conceded he possessed two firearms; thus he committed an act charged (possession) even if he no longer met the felon-status element for federal liability.	Majority: Held Mills committed the act (possession) and therefore failed predicate 2(a). Dissent: would hold he satisfied 2(a).
Could Mills instead satisfy predicate 2(b) (that his acts constituted no offense under any State)?	Mills: N/A (he conceded the opposite).	Government/Majority: Mills’s acts violated North Carolina law (possession by felon), so 2(b) fails.	Held: Mills conceded and cannot satisfy 2(b).
Did Mills “by misconduct or neglect cause or bring about his own prosecution” (predicate 3)?	Mills: argued he did not cause prosecution; prosecution was unreasonable under pre-Simmons law (per dissent).	Government/Dissent: Mills pawned firearms despite risk and governing circuit law — neglect caused prosecution.	Majority avoided this ground; district court had denied on predicate 3; dissent would deny relief on predicate 3.

Key Cases Cited

United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc) (narrowing what prior convictions qualify as § 922(g)(1) felonies)
United States v. Graham, 608 F.3d 164 (4th Cir. 2010) (interpretation of § 2513 predicates and burden for certificate of innocence)
Old Chief v. United States, 519 U.S. 172 (1997) (distinguishing elements like felony-convict status from the defendant’s acts)
Pulungan v. United States, 722 F.3d 983 (7th Cir. 2013) (vacated conviction where defendant committed the acts but jury lacked proof of an element; court denied certificate under § 2513(a)(2)(a))
Osborn v. United States, 322 F.2d 835 (5th Cir. 1963) (discussing distinction between acts charged and statutory elements under certificate statutes)
Betts v. United States, 10 F.3d 1278 (7th Cir. 1993) (explaining § 2513’s purpose to limit relief to the truly innocent)
United States v. Racing Servs., Inc., 580 F.3d 710 (8th Cir. 2009) (characterizing § 2513 relief as limited to those not guilty of any offense)