Richard Lee Wiegand v. United States of America

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0269A (6th Cir.)
File Name: 04a0269a.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
RICHARD LEE WIEGAND,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
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No. 02-1740
Appeal from the United States District Court
for the Western District of Michigan at Lansing
No. 00-00496—David W. McKeague, District Judge.
Decided and Filed: August 19, 2004
Before: DAUGHTREY, GIBBONS, and COOK, Circuit
Judges.
______________________
AMENDED OPINION
______________________
COOK, Circuit Judge. Richard Wiegand appeals the
district court’s dismissal of his motion to vacate his sentence
under 28 U.S.C. § 2255. The district court decided Wiegand
failed to file his motion within the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) limitations
period. We reverse the district court’s decision and remand
for the district court to determine whether the Supreme
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Court’s decision in Jones v. United States, 529 U.S. 848
(2000)—decided after Wiegand’s conviction—established a
new AEDPA limitations period.
I
A federal jury found Wiegand guilty of several offenses,
including arson. We affirmed his conviction on direct appeal.
United States v. Wiegand, No. 93-1735, 1994 WL 714347, at
*1 (6th Cir. Dec. 22, 1994) (unpublished). Several years
later, Wiegand moved to vacate his sentence under 28 U.S.C.
§ 2255 on the ground that his arson conviction was not
supported by sufficient evidence in light of Jones. A
magistrate judge recommended the court deny his motion
because the AEDPA statute of limitations barred his claims.
After reviewing Wiegand’s objections, the district court
adopted the magistrate’s report and recommendation. The
district court granted a certificate of appealability with respect
to Wiegand’s challenge to his arson conviction. Another
panel affirmed the district court’s decision, Wiegand v. United
States, 70 Fed. Appx. 312 (6th Cir. 2003), but granted
Wiegand’s petition for rehearing.
II
The issue certified for appeal is whether Wiegand’s
challenge to his arson conviction is barred by the AEDPA’s
one-year statute of limitations. Wiegand and the United
States agree the AEDPA limitations period does not bar his
motion.
Section 2255 authorizes a federal prisoner to move the
district court to vacate his sentence. 28 U.S.C. § 2255 ¶ 1.
The AEDPA established a one-year limitations period for
§ 2255 motions, generally running from “the date on which
the judgment of conviction becomes final.” § 2255 ¶ 6(1).
But the AEDPA established alternative limitations periods,
including one for new rights the Supreme Court recognizes
after the prisoner’s conviction becomes final:

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No. 02-1740 Wiegand v. United States 3
A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run from
the latest of —
. . .
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review;
. . . .
28 U.S.C. § 2255 ¶ 6(3).
Wiegand claims—and the United States agrees—that his
motion was timely under § 2255 ¶ 6(3) because he filed it
within one year of the Supreme Court’s decision in Jones.
Wiegand can avail himself of ¶ 6(3) if Jones created a right
that has been newly “recognized by the Supreme Court and
made retroactively applicable to cases on collateral review.”
§ 2255 ¶ 6(3). The district court concluded that ¶ 6(3) did not
apply because Jones had not been “made retroactively
applicable to cases on collateral review” and that it could not
decide Jones applied retroactively, leaving that decision to
this court or the Supreme Court. We disagree with the district
court’s conclusion that it could not decide whether Jones
applies retroactively and we remand to the district court to
make this decision.
III
Jones restricted the scope of the federal arson statute,
decriminalizing conduct that courts previously viewed as
within the statute’s reach. Jones parallels the Supreme
Court’s decision in Bailey v. United States, 516 U.S. 137, 143
(1995) (holding that a conviction for using a firearm in
relation to a drug offense requires evidence to show the
defendant’s active employment of the firearm). In fact, Jones
relied on Bailey for its conclusion that “use” in the statute
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signifies “active employment.” Jones, 529 U.S. at 855 (citing
Bailey, 516 U.S. at 143, 145).
When we considered whether Bailey applied retroactively,
we canvassed the circuits and identified four different
retroactivity approaches: (1) only the Supreme Court can
make the retroactivity decision; (2) a circuit court can make
the retroactivity decision; (3) any inferior federal court can
make the retroactivity decision; and (4) not deciding the issue
because the defendant moved to vacate within one year of
Bousley v. United States, 523 U.S. 614 (1998). Pryor v.
United States, 278 F.3d 612, 615-16 (6th Cir. 2002). We
adopted the fourth approach and declined to decide whether
a court other than the Supreme Court could make the
retroactivity decision because of the unique circumstances
involved in that case. Confronted with this question again
here, we decide that any federal court can make the
retroactivity decision, the third Pryor alternative.
The language of ¶ 6(3) belies the conclusion that only the
Supreme Court could decide retroactivity. As numerous
courts have noted, if Congress intended that result, then it
would have utilized the same language it used in § 2255
¶ 8(2). The second and third Pryor positions recognize that
a court other than the Supreme Court can decide retroactivity.
The difference between these positions is whether a district
court can decide retroactivity or whether only a circuit court
can make that decision. A number of circuits have considered
this question since we decided Pryor.
The Third Circuit decided that either a district court or
circuit court can make the retroactivity decision. United
States v. Swinton, 333 F.3d 481, 486 (3d Cir. 2003).
Permitting a district court or circuit court to make the decision
“may be essential to put the question before the Supreme
Court for final resolution.” Id. at 486 (citing Ashley v. United
States, 266 F.3d 671, 673 (7th Cir. 2001)). The Swinton court
“conclude[d] - and the parties agree[d] - that the statute of
limitations provision of § 2255 allows district courts and

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No. 02-1740 Wiegand v. United States 5
courts of appeals to make retroactivity decisions.” 333 F.3d
at 487. The Eleventh Circuit reached the same conclusion
earlier this year, recognizing that “every circuit to consider
this issue has held that a court other than the Supreme Court
can make the retroactivity decision for purposes of § 2255
[¶6](3).” Dodd v. United States, 365 F.3d 1273, 1278 (11th
Cir. 2004) (citing decisions from the Third, Fifth, Seventh,
and Eleventh Circuits and ultimately concluding that the
limitations period began to run on the date of the Supreme
Court decision even though it recognized a district court
could decide the retroactivity question).
IV
The district court here should decide retroactivity in the
first instance. If the district court finds Wiegand filed timely,
then it can address the merits of his claim. This procedure
will produce a more efficient resolution of retroactivity
issues; committing the timeliness decision to the district court
rather than the circuit court avoids a second round of
proceedings on remand to consider the merits of the
petitioner’s claim. We thus reverse the district court’s
judgment and remand for the district court to consider
whether Jones applies retroactively. If the district court
decides Jones applies retroactively, it should consider the
merits of Wiegand’s claim and any procedural defenses the
United States raises.

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