Legal Case Summary

Thank you. Is Taylor? Thank you, Your Honor, and good morning. Mr. Harrison's criminal history rage was increased because his pre-sentencing report contained a state predicate offense for driving without a license in North Carolina. Prior to receiving his pre-sentencing report, Mr. Harrison had no knowledge of this predicate offense. And he has consistently maintained that he didn't commit it. He wasn't aware of any merit-tearing and he didn't attend any such hearing. He also didn't have right of counsel at any hearing. Mr. Harrison was sent after Mr. Harrison was sentenced. He worked diligently to vacate this conviction, which he ultimately achieved in August of 2011. Shortly thereafter, Mr. Harrison filed his numerically second, 2255 motion, seeking to be recentenced in light of his vacated predicate offense. And the district court summarily denied Mr. Harrison's motion as an improper second or successive motion under 2255. Mr. Harrison's numerically second, 2255 motion is not second or successive because the basis for this motion did not ripen until his state conviction had been vacated. In this court, it's well settled law that not every numerically second petition is considered second or successive under 2255. And even more to the point, this court has also held that a numerically second motion is not second or successive when the claim for the subsequent motion fails to arise until after the first 2255 motion is filed. And actually, the government admits this in its briefing. The government specifically says on page 22 and 23 of their brief that when the basis for the claim was not ripe at the time of the first petition, the motion is not considered second or successive. And that's what we have here, Your Honor

. Mr. Harrison's claim did not ripen until his state predicate offense was vacated. But before we get to that, didn't appellant wave this in the plea agreement? As an initial matter, Your Honor, the government has waived its right to assert this plea waiver defense because it failed to do so at the earliest part of the process. What if we find that the government didn't waive the waiver argument? In that case, Your Honor, the appeal waiver does not apply to Mr. Harrison's current appeal for three key reasons. The first is that this court has refused to enforce appeal waivers and cases that involve errors that the defendant could not have reasonably foreseen when the plea agreement was executed. And Mr. Harrison's case, he signed his plea agreement in February of 2002. At the time he signed this agreement, Mr. Harrison could not reasonably enforce that a predicate offense of which he had no knowledge of and has maintained that he was never convicted of, didn't know anything about a hearing, didn't attend to hearing, would be used against him to enhance his sentence. Mr. Harrison. About the time of sentencing, he was aware of it. He was Your Honor, which was six months later. So there was a six month gap between when he signed the plea agreement and when he received his pre-sentencing report, which is his first notification of this state predicate offense. In short, Your Honor, it's just not reasonably foreseeable. He moved to his draw. I'm sorry, Your Honor. Did you move to his draw, the plea? He did not, Your Honor, but he did challenge the predicate offense that his hearing. He said that he didn't commit the offense and was not successful in that challenge. But also at his plea, at his sentencing, it was a little confusing as to whether he had the right to appeal a sentence or not. At the very end of his sentencing, the district court did say, you have a right to appeal my judgment. You're entitled to appeal the court's judgment, which is similar to what happened to the defendant in the United States mannequin case of this court, where Mr

. Manigan had abroad a peel waiver in his plea agreement. But at the end of the rule 11 hearing and then again at the end of sentencing, the district court told Mr. Manigan that he had a right to appeal. And that's similar to what happened to Mr. Harrison here. At the end of his sentencing hearing, the district court said, you're entitled to appeal the court's judgment. And given these statements at the sentencing hearing that are contrary to the peel waiver, Mr. Harrison could hardly be said to have a knowing way of this right. Mr. Mastell, going back to Judge Gregory's question, what do you think about the rule in this circuit is that you have to move to withdraw your plea, right, in order for narrowly to get relief in circumstances such as these. Would you agree with that? No, you're right. I don't think it's necessary to do that in this case because- No, I mean generally, not so much about this case. I'm going to ask you about this case, but isn't it the rule in this circuit that if you sign a plea waiver, an appeal waiver and a plea agreement, and then something surfaces between the time of the plea and the sentencing. Is the rule in this circuit pretty much that you've got to move to withdraw in order to put yourself in position to challenge something? I don't think that's necessarily the case and it's particularly not in the circumstances of Mr. Harrison. You know, when Mr. Harrison was at sentencing, his conviction wasn't vacated yet. So it would have been very difficult for him to have sought any relief until that conviction is actually vacated. And he had to go through a long lengthy process in the state court to accomplish that. Many times there's a request to continue the sentencing. And there was one granted in this case so that his attorney could do some sort of investigation into this particular conviction. The attorney, which I think was court appointed, did I guess investigate that Mr. Harrison may have been in North Carolina at the time the conviction occurred, but didn't do any further investigation as to whether the conviction was ultimately valid and applied to Mr

. Harrison, which was Mr. Harrison's ultimate contention. And to Mr. Harrison's credit, he filed an ineffective assistance of council claim in his first 2025 motion, saying ineffective assistance for failing to object to the false information that was used to enhance the sentence. And again, to his credit, as a pro-say petitioner was able to work his way through the state forum to ultimately get this conviction vacated, which is something that, you know, effective lawyer should have been able to have done. I also add, your honor that this court has also refused to enforce an appeal waiver if doing so would result in a miscarriage of justice, or it would be fundamentally unfair to do so. And it would be fundamentally unfair to allow Mr. Harrison to sit in prison for a longer period of time when the basis for a sentence enhancement has been vacated. That fact no longer exists. And in this court's recent decision in White side, which I know Judge Gregory and Judge Davis wrote the majority, or did the majority for the opinion, the court talked about the concept of fundamental unfairness and decided that it would be fundamentally unfair not to allow defendants to be resettanced when the district court used a predicate offense to enhance the defendant's sentence under the career of under statute, when that predicate offense was later determined not to qualify under that particular statute. In discussing the fundamental unfairness requirements, the court also discussed the Supreme Court's decision in Davis, where the Supreme Court determined it would be a miscarriage of justice to allow defendants to be punished, when the condetic at issue is later determined not to be criminal. And that's what we have here, Mr. Harrison's case. His case is even more unfundamentally of bear than what was presented in White side. And more candid Davis, like Mr. Davis, Mr. Harrison is being punished by having to sit in prison longer, for a crime that is no longer on his record, but a crime that has been successfully vacated through the state forum. And lastly, I'll add your honor in terms of the motion to dismiss issue. Mr. Harrison, in his briefing, has also raised as an alternative relief the right to seek rid of court of nobis. And the appeal waiver would not apply to Mr. Harrison's rid of court of nobis, and the government has never contended that it does. While it's true that this court has suggested that court nobis may not be available, what it did, if it is imprisoned, this court has expressly recognized the court nobis is available when no other remedy exists

. And other circuits have recognized that there shouldn't be an absolute bar to court nobis if you happen to be imprisoned, especially when relief under 2255 is unavailable or inadequate. So if Mr. Harrison cannot seek relief to have to be resettanced in light of this vacated predicate offense under 2255, then he should be allowed to do so under a rid of court of nobis. It's just fundamentally unfair to let a man sit in prison for up to two more years for a crime that is no longer on his record, and he's always maintained he didn't commit. So turning back to the second or successive issue your honor, this court in Johnson, or I'm sorry, the Supreme Court in Johnson has determined that when a conviction is predicate offense is vacated, that serves to ripen the claim to bring that. And again, that's what we have here. The government has not undermined any of the precedent from the four circuit or the Supreme Court, but instead relies on a single case from the seven circuit, the unthink decision. And that's in applicable to the four circuits approach to dealing with second or successive. The seven circuit has taken a different perspective on the meaning of second or successive under 2255. They have rejected the idea of incorporating the abuse of the writ standard and tend instead to interpret second or successive literally. And that's contrary to what this court has determined in past precedent. Additionally, factually unthink is different than Mr. Harris in this case. Mr. Unthink, after his predicate conviction was reduced or vacated, then filed, I believe, four motions under 2255, and then finally appealing to the seven circuit, the fourth one. Mr. Harris, and after his predicate of conviction was vacated, filed one motion, the motion that we're here on appeal today. Briefly, your honor, the government has raised a couple of other technical reasons as to why Mr. Harris and should not be allowed to proceed with his appeal. The first one is that he is somehow procedurally defaulted from bringing this claim under the CUSTA's decision from the United States Supreme Court. CUSTA is an applicable to Mr. Harris and his claim. It dealt with a defendant that's trying to vacate a state prediction, predicate offense through a federal sentencing hearing

. Mr. Harrison has already done that. And CUSTA has held the defendant may challenge a state predicate offense at sentencing if based upon the violation to right counsel. CUSTA has never said that you must do that, or you'll be procedurally barred from later reopening your sentencing after you successfully vacated the conviction through the state forum. No court has said that that we're aware of, and the government hasn't pointed to any. If anything, CUSTA simply opened another door, another avenue to pursue the vacatory of a predicate offense based on violation of the right to counsel. And importantly, I'll note that in Johnson, the Supreme Court where a predicate offense was vacated and the defendant at least had a viable claim to reopen his sentencing, that conviction was also vacated on the right violation of the right to counsel. And the Supreme Court never said that he was barred under CUSTA's. And additionally, I'll just practically urutter. There's a reason why the CUSTA's language is not mandatory. I would just be incredibly difficult for a federal court, even under the best of circumstances to undermine a state court conviction the best way, and the most efficient way to vacate a state predicate offense is through the state forum, which is what Mr. Harrison did here. Briefly, the government is contended that Mr. Harrison doesn't have a claim under 2255 attempting to mischaracterize Mr. Harrison's claim as sort of a calculation error under the sentence and guidelines. That's not what we have here. Johnson is pretty clear that when you have a vacated predicate offense, you at least have a viable claim under 2255. This is not a case where there was a calculation error by the district court or the district court aired and how it interpreted the predicate offense, whether it should be classified as something instead of something else. Instead, this is an issue where the conviction was completely white from Mr. Harrison's record. The government briefly mentions Mr. Harrison is under Johnson required to have pursued his state predicate offense with due diligence. He did so here approximately six months after he sentence was finalized

. He filed his first motion state court to attempt to have the state court conviction vacated. He filed another motion, state court in 2005, and then didn't hear anything from the state court even though he had friends and family ask about the issue. He was diligent though and continued to pursue the issue, filing a third motion in June of 2011, which the state court finally acknowledged and acted on and ultimately vacated Mr. Harrison's predicate offense. The government briefly states with no citation the case law that Mr. Harrison did not act with due diligence because he did not pursue the claim on the basis of right of counsel in every single motion he filed with the state court. That is an unfair standard for a pro-say plaintiff. Mr. Harrison was always consistent in why his conviction should be vacated, which is that he wasn't there. He didn't commit it. He wasn't aware of meers hearing. It's not a jump to say that he also didn't have right to counsel. He worked diligently to get this done. Additionally, you're on our, we have, like we've talked briefly about core of nobice as another way of which Mr. Harrison can also have a turn of relief. And also, if the court determines that Mr. Harrison's claim is second or successive, then it should grant him the ability to pursue that under the actual innocence exception under 2255. As this court has said in the Mayback decision, you can be actually innocent of a sentence enhancement with the vacated conviction off of Mr. Harrison's record. He is actually innocent of having a career history level of four and set of three. And I believe I have some time for a rebuttal, so I appreciate your time. Thank you very much, Mr. Taylor

. Mr. Miller. May I please the core of my name is William Miller here on behalf of the United States. Petitioners' motion is subject to dismissal for several reasons, including waiver. But I'd like to clarify something in the record at the outset of my argument if I may. Petitioners' council has argued several times in her briefing and here today that the petitioner has consistently maintained that this prior conviction didn't happen. That's simply not true if you look at the record. And I'd call the court's attention to page 79 of the Joint Appendix. This is where the petitioner's 2255 motion in the district court appears. The motion that was ultimately denied a second or successive that the appeal of which brings us here today. And if you look at the first paragraph of that motion, the petitioner is describing this prior conviction. And what he says is that the petitioner on November 30, 1991, which issued a traffic citation for no operators license. And here's the important part. The petitioner on April 8, 1992 appeared to face the charge and plead guilty to the charge. The court imposed the sentence of six months and imposed a find of $100. That motion then goes on from there to argue that because he didn't have right to counsel, he was able to successfully flatarily attack it. But this paragraph here shows that this whole argument of I wasn't there, it wasn't me, somewhere along the line, the petitioner realized that it was him. But I thought we were here because it's undisputed that now it's been vacated. It has been vacated. Okay. So what doesn't matter whether I'm not I'm not sure I'm following you. The reason that this is important, Judge Davis, is because even accepting the petitioner's view of this rightness exception to the bar on seconder successive petitions, the Stewart court and the other courts that have found this kind of thing is accepted from that bar have still required due diligence. And so in this case, this shows that the petitioner's initial challenge in the state court, which was based on I wasn't there, it wasn't me, was somewhere along the line dropped

. She just describes this as sort of a long path to getting his conviction vacated. Well, what this shows is somewhere along the line, he switched paths. This was not about I wasn't there, it wasn't me. It was a challenge based on right to counsel. And that challenge by petitioner's own admission, it wasn't raised with the state district court until 2011, which is more than eight years after the judgment in the federal case became final. And so that diligence requirement that these other courts have imposed in these rightness cases with vacated convictions comes from Johnson. And that's the Supreme Court case. And in Johnson, the diligence requirement began when the federal sentence was imposed. And in Johnson, the court held that 21 months was not sufficient diligence. Here, the petitioner waited eight years before he brought his claim based on the right to counsel issue. And that's just not sufficient diligence, even if the petitioner's view of the rightness in section is accepted. So is it diligence in challenging the underlying conviction? Correct. Yes, Your Honor. Okay. And what is the timeline here? The timeline here is that within six months, he filed a motion with this district court and state district court asserting actual six months of sentencing in federal court. Correct. Right. File a motion saying actual innocence, it wasn't me. Okay. And that's the only motion we have in the record. There's also a representation in the brief that he filed a second motion in 2005. Somewhere along the line though, it apparently became clear to the petitioner that it was in fact him. He admits his months in this subsequent motion

. Okay. And he got it, he got it vacated. He got it vacated. That was based on a motion filed in 2011 on the right to counsel issue. So your argument is that he waited too long to be aggressive enough to do whatever was necessary to be done to get the conviction vacated. The government's argument is that he waited eight years to assert the claim that led to the vacation. But you keep saying assert the claim. He couldn't assert the claim until he got it vacated. I was sorry, I didn't mean that. I was being unclear. What I meant was he waited eight years to file the motion with the state court. But I thought you said he filed a motion six months after sends. The government's argument here, that was a different path. That's on this actual innocence. It wasn't me, which clearly based on the court. So you believe that it wasn't me, theory of vacator is different from yet was me, but for whatever reason, you should vacate it. You don't see that as just a continuous effort to get a conviction vacated. No, but even if the court accepts the defendant's version of events, which is motion in 2003, motion in 2005. I thought you were accepting that. Well, if the court characterizes them as all part of one path as opposed to switching paths, there's still a gap between 2005 and 2011. 2011 is the motion that got this vacated and it was on an entirely different basis. And so that's the government's argument. He was represented by counsel or did he do it on his own? I believe he was he was pro-say in 2011, but as the Johnson court held 21 months for a pro-say defendant, that wasn't sufficient diligence

. And here, the government's position is he switched paths altogether and once he realized as he represented here that it was me, I was the one who was there pleading guilty. He brought an altogether different claim, but he did so. See, I don't see it as a different claim. You got a conviction. I mean, if you're trying to get it vacated because it was used to enhance, I just don't see it as a separate claim. It's a claim that I want this conviction vacated. And for whatever reason I can come up with or prove, but I see your position, you think it's, I mean, do you think he was lying or do you think he just forgot? I mean, sometimes I think he was a matter of... I think he was a matter of... I think he was a matter of... I think he was a matter of... I think he was a matter of what they were convicted of. Well, and the record shows he had five or six... Right. ...victions for driving with no, regardless of life. So it could have been a matter of confusion, but it's still... The point still remains that he didn't bring this claim on right to council issues until eight years after the judgment came. Even setting aside the diligence, however, the government believes that this court should not interpret the exception for successive petitions based on unright claim so broadly. To adopt the position taken by the 11th Circuit and the Stewart case would essentially render the exceptions in Edpa obsolete in many ways. And the reason for that is that there are two exceptions as the court I'm sure is aware for successive petitions in the statute. One is for claims that are based on a new rule of constitutional law that's been made retroactive by the Supreme Court, and the second is for new evidence that shows innocence of the offense. And so if the bar on successive petitions is expanded to allow for any claim that wasn't right or couldn't have been brought before, taken to which logical extension would completely render those exceptions obsolete. The 11th Circuit has taken that position here, I'd say there's two distinctions. Was that sister wrong? Well, your sister in the 7th Circuit was right, your sister in the 11th Circuit was wrong. And that brings me to another clarification. To say that the jurisprudence in the 4th Circuit and the 7th Circuit is completely opposite on this issue of the rightness exception is simply a red herring. I mean, what petitioner has done is cite a couple of statements early on that the 7th Circuit made about abuse of the writ is dead, but if you look at the way the 7th Circuit has interpreted Edpa since that time, and including in those very cases, it's apparent that the 7th Circuit also allows this narrow limited exception for certain claims that were unright at the time that the initial motion was filed. And so, in fact, the Taylor case, which is the case that petitioner holds up as, look, this is the 4th Circuit case that stands in contrast to the 7th Circuit case. The holding in that case actually cites to a 7th Circuit case. And so it's just not the case that the 7th Circuit is so out of step with all other circuits. That being said, the 7th Circuit's analysis and unthink is the better reason to approach. And the reason is that it used more closely to the statute for the reasons Alice describing earlier

. ...victions for driving with no, regardless of life. So it could have been a matter of confusion, but it's still... The point still remains that he didn't bring this claim on right to council issues until eight years after the judgment came. Even setting aside the diligence, however, the government believes that this court should not interpret the exception for successive petitions based on unright claim so broadly. To adopt the position taken by the 11th Circuit and the Stewart case would essentially render the exceptions in Edpa obsolete in many ways. And the reason for that is that there are two exceptions as the court I'm sure is aware for successive petitions in the statute. One is for claims that are based on a new rule of constitutional law that's been made retroactive by the Supreme Court, and the second is for new evidence that shows innocence of the offense. And so if the bar on successive petitions is expanded to allow for any claim that wasn't right or couldn't have been brought before, taken to which logical extension would completely render those exceptions obsolete. The 11th Circuit has taken that position here, I'd say there's two distinctions. Was that sister wrong? Well, your sister in the 7th Circuit was right, your sister in the 11th Circuit was wrong. And that brings me to another clarification. To say that the jurisprudence in the 4th Circuit and the 7th Circuit is completely opposite on this issue of the rightness exception is simply a red herring. I mean, what petitioner has done is cite a couple of statements early on that the 7th Circuit made about abuse of the writ is dead, but if you look at the way the 7th Circuit has interpreted Edpa since that time, and including in those very cases, it's apparent that the 7th Circuit also allows this narrow limited exception for certain claims that were unright at the time that the initial motion was filed. And so, in fact, the Taylor case, which is the case that petitioner holds up as, look, this is the 4th Circuit case that stands in contrast to the 7th Circuit case. The holding in that case actually cites to a 7th Circuit case. And so it's just not the case that the 7th Circuit is so out of step with all other circuits. That being said, the 7th Circuit's analysis and unthink is the better reason to approach. And the reason is that it used more closely to the statute for the reasons Alice describing earlier. There's these two exceptions in 2255 age to say that any time you have an unright claim, you can come back in here, would render those completely obsolete. And one of those exceptions is for new evidence or new facts. That new evidence or new facts by statute has to relate to the offense. Here, the new evidence or facts relate to a aspect of the sentence. And so, to expand the unright miss claim to incorporate those types of errors, would render 2255 age 1 effectively obsolete because you could come in with new evidence as to any part of the criminal matter, not just the evidence of guilt of the offense. And so, for those reasons, the government's position on this first question about whether or not it's a second or successive petition is that that would essentially broaden this narrow exception for unright claims too far. And that even if you accept that position that the petitioner urges, there was a lack of diligence. But you agree that if we find Stuart persuasive, apart from diligence, we hold that this is not far, right? There's another distinction with Stuart that the court views is important. What's that? And in Stuart, the predicate conviction was related to a career fender error. And here, the error is based on a criminal history point. And in order to have a cognizable claim under 2255, in these circumstances, where the parties agree this is a constitutional sentence, and this is a lawful sentence, the petitioner has to show that it's otherwise subject to collateral attack. And that requires a very high showing, which is a miscarriage of justice or fundamental defect that renders the entire process irregular or invalid. And as this is the case, I'm sorry to interrupt, but actually, I wanted to ask this question. We're arguing here over one criminal history point. Correct. And he's already had two reductions in his sentence. That's true, Your Honor. So, you look like a pretty good lawyer to me. Would you be concerned that you couldn't persuade the district court to give him the same sentence that he's now serving if this actually went back? Well, I mean, really? Perhaps, but that's really not the question we have. Well, I just think that's the question I asked. Right. It's the question I asked. And the question he's got 210 months

. There's these two exceptions in 2255 age to say that any time you have an unright claim, you can come back in here, would render those completely obsolete. And one of those exceptions is for new evidence or new facts. That new evidence or new facts by statute has to relate to the offense. Here, the new evidence or facts relate to a aspect of the sentence. And so, to expand the unright miss claim to incorporate those types of errors, would render 2255 age 1 effectively obsolete because you could come in with new evidence as to any part of the criminal matter, not just the evidence of guilt of the offense. And so, for those reasons, the government's position on this first question about whether or not it's a second or successive petition is that that would essentially broaden this narrow exception for unright claims too far. And that even if you accept that position that the petitioner urges, there was a lack of diligence. But you agree that if we find Stuart persuasive, apart from diligence, we hold that this is not far, right? There's another distinction with Stuart that the court views is important. What's that? And in Stuart, the predicate conviction was related to a career fender error. And here, the error is based on a criminal history point. And in order to have a cognizable claim under 2255, in these circumstances, where the parties agree this is a constitutional sentence, and this is a lawful sentence, the petitioner has to show that it's otherwise subject to collateral attack. And that requires a very high showing, which is a miscarriage of justice or fundamental defect that renders the entire process irregular or invalid. And as this is the case, I'm sorry to interrupt, but actually, I wanted to ask this question. We're arguing here over one criminal history point. Correct. And he's already had two reductions in his sentence. That's true, Your Honor. So, you look like a pretty good lawyer to me. Would you be concerned that you couldn't persuade the district court to give him the same sentence that he's now serving if this actually went back? Well, I mean, really? Perhaps, but that's really not the question we have. Well, I just think that's the question I asked. Right. It's the question I asked. And the question he's got 210 months. How far along is he, by the way? He's probably what? He's well over halfway through that. Right. And we're talking about what? We're talking about what? 16 months? I don't know. Do you know what are we talking about? He got 210 and the range is 188 to 235. So is that okay? So that would so the the new range would be what? One new range would be 188 to 235 to 235. What was the range when he got to 210? 210 and 210 was the bottom. So 210 was the bottom. So is there any reason possibility he's going to get anything other than the exact same sentence? There's a reason that there's a possibility, but your honor is question. Do you really think this possibility judge is going to give him a reduced sentence? It's possible he'd be sentenced to 10 is right in the middle of the. Correct. But even if it regardless, your honor's line of questioning actually supports the government's argument that this is not a cognizable claim under 2255. I has to do certain things and take certain positions and dedicate certain matters because sometimes matters are more important than just the single case. I do I do understand that and I respect that. And that but it does raise some serious questions. Well, this is an example of that case because the this is an example of a case where you could have gone back before the district court and gotten the same sentence and you wouldn't even be here. But I understand the district court rejected because you objected. Now you're up before the fourth circuit. We've had a point in council. Yada yada yada. And the chance that he's going to get anything less than 210 months, even if we rule in his favor here is shall we say, de minimis? And that's generous. And I agree. And I just wonder why sometimes just to clarify the record in this case, the court ruled on the motion without ordering. Correct

. How far along is he, by the way? He's probably what? He's well over halfway through that. Right. And we're talking about what? We're talking about what? 16 months? I don't know. Do you know what are we talking about? He got 210 and the range is 188 to 235. So is that okay? So that would so the the new range would be what? One new range would be 188 to 235 to 235. What was the range when he got to 210? 210 and 210 was the bottom. So 210 was the bottom. So is there any reason possibility he's going to get anything other than the exact same sentence? There's a reason that there's a possibility, but your honor is question. Do you really think this possibility judge is going to give him a reduced sentence? It's possible he'd be sentenced to 10 is right in the middle of the. Correct. But even if it regardless, your honor's line of questioning actually supports the government's argument that this is not a cognizable claim under 2255. I has to do certain things and take certain positions and dedicate certain matters because sometimes matters are more important than just the single case. I do I do understand that and I respect that. And that but it does raise some serious questions. Well, this is an example of that case because the this is an example of a case where you could have gone back before the district court and gotten the same sentence and you wouldn't even be here. But I understand the district court rejected because you objected. Now you're up before the fourth circuit. We've had a point in council. Yada yada yada. And the chance that he's going to get anything less than 210 months, even if we rule in his favor here is shall we say, de minimis? And that's generous. And I agree. And I just wonder why sometimes just to clarify the record in this case, the court ruled on the motion without ordering. Correct. So at the district court, we actually did not take a position. So you're sort of here defending something that you never had a chance to respond to in the district court. But it is important for the reasons, you know, your honor recognized, which is that these barriers to post conviction claims are important. It's important for the government to enforce, you know, edpa and the concerns for finality. No doubt about it. But to your honor's point, the fact that the defendant could have, and in fact, likely would receive the same sentence, shows that this type of case does not present the fundamental mischaracter of justice that's required for a cognizable claim under section 2255. And to sort of take this whole thing out of order just to address some of the petitioner's arguments about waiver. What about councils at the white side impacts on their argument? She thinks that she's a favorite player of style. And the government believes that white side actually supports its position. And the reason is that in white side, Judge Gregory in writing for the majority was very careful to highlight how- You mean me? Yes, you your honor. The distinguished was careful to highlight how career fender error is different from other guidelines errors. That was part of the analysis and rationale and why that type of error did just a fire relief on collateral review. And so the government's perspective is that white side, in fact, supports our position that this is not a cognizable claim because the error in this case is much more like the ordinary guidelines error that the court was very careful to distinguish from career fender error and white sides. Now you can tell us now why you think you didn't waver objection. Well, the waiver of waiver, in this case, the government admittedly filed an informal brief or that issue wasn't raised. But this is not a case where the government didn't file a brief of taking a position on waiver. We did when formal briefing was ordered when both parties augmented their positions. And- But you had a chance. That's why we wanted to do that early on. And you did do so. And I wish I had. But this is not a case where petitioner was unfairly prejudiced. The petitioner had a response, the chance to respond, file a response

. So at the district court, we actually did not take a position. So you're sort of here defending something that you never had a chance to respond to in the district court. But it is important for the reasons, you know, your honor recognized, which is that these barriers to post conviction claims are important. It's important for the government to enforce, you know, edpa and the concerns for finality. No doubt about it. But to your honor's point, the fact that the defendant could have, and in fact, likely would receive the same sentence, shows that this type of case does not present the fundamental mischaracter of justice that's required for a cognizable claim under section 2255. And to sort of take this whole thing out of order just to address some of the petitioner's arguments about waiver. What about councils at the white side impacts on their argument? She thinks that she's a favorite player of style. And the government believes that white side actually supports its position. And the reason is that in white side, Judge Gregory in writing for the majority was very careful to highlight how- You mean me? Yes, you your honor. The distinguished was careful to highlight how career fender error is different from other guidelines errors. That was part of the analysis and rationale and why that type of error did just a fire relief on collateral review. And so the government's perspective is that white side, in fact, supports our position that this is not a cognizable claim because the error in this case is much more like the ordinary guidelines error that the court was very careful to distinguish from career fender error and white sides. Now you can tell us now why you think you didn't waver objection. Well, the waiver of waiver, in this case, the government admittedly filed an informal brief or that issue wasn't raised. But this is not a case where the government didn't file a brief of taking a position on waiver. We did when formal briefing was ordered when both parties augmented their positions. And- But you had a chance. That's why we wanted to do that early on. And you did do so. And I wish I had. But this is not a case where petitioner was unfairly prejudiced. The petitioner had a response, the chance to respond, file a response. But we don't require prejudice, do we? In this context? The analysis is whether or not the government explicitly or implicitly waived. And so here, the argument would be that the government implicitly waived in an informal brief and responding to an informal, predatory brief. Yeah, I've always been what- Since I've been on this court, it's really been curious to me how frequently the government does not invoke waiver. Can you explain that as an aside? Not your own personal practice. But really, I've been- I mean, I was on the district court when this tsunami of appellate waivers washed over the federal courts. When I was a prosecutor back in the 80s, nobody ever thought that to demand an appellate waiver as a part of a plea agreement. And then little by little, some offices, not necessarily around the circuit, but certainly some offices began to do that. And then it became a part of the formal protocol, right? I mean, it's right there, I guess, in the US Attorney's Man. You must insist on an appellate waiver. And in fact, you remember we had that case, Judge Matzrow, this wonderful opinion in which she said refusal to waive appeal could not be a grounds for withholding the third point for acceptance of responsibility, right? So that was sort of the extreme that the US Attorney's offices were taking. And now I come up to the fourth circuit, happy to be here. And I'm sitting on these screencases, and it seems like one or two out of every five, the government doesn't even invoke waiver. So why put them in the plea agreements if you're not going to invoke it? I can't really speak with that. Fair enough. And our district is also where the Simmons litigation has originated. There I even utter that word. There's all kinds of waiver concerns going on there. So my experience. What is the jurisprudential metric we should use since a lack of prejudice that gets you there perhaps? When should we do it? You had an informal briefing and that's what it's for to brief us as to where we should go. And as you know, waivers should be the first thing you waive pardon the puns at us when it exists. And Judge Greggert, I certainly wish I had asserted the waiver. I understand. I'm not

. But we don't require prejudice, do we? In this context? The analysis is whether or not the government explicitly or implicitly waived. And so here, the argument would be that the government implicitly waived in an informal brief and responding to an informal, predatory brief. Yeah, I've always been what- Since I've been on this court, it's really been curious to me how frequently the government does not invoke waiver. Can you explain that as an aside? Not your own personal practice. But really, I've been- I mean, I was on the district court when this tsunami of appellate waivers washed over the federal courts. When I was a prosecutor back in the 80s, nobody ever thought that to demand an appellate waiver as a part of a plea agreement. And then little by little, some offices, not necessarily around the circuit, but certainly some offices began to do that. And then it became a part of the formal protocol, right? I mean, it's right there, I guess, in the US Attorney's Man. You must insist on an appellate waiver. And in fact, you remember we had that case, Judge Matzrow, this wonderful opinion in which she said refusal to waive appeal could not be a grounds for withholding the third point for acceptance of responsibility, right? So that was sort of the extreme that the US Attorney's offices were taking. And now I come up to the fourth circuit, happy to be here. And I'm sitting on these screencases, and it seems like one or two out of every five, the government doesn't even invoke waiver. So why put them in the plea agreements if you're not going to invoke it? I can't really speak with that. Fair enough. And our district is also where the Simmons litigation has originated. There I even utter that word. There's all kinds of waiver concerns going on there. So my experience. What is the jurisprudential metric we should use since a lack of prejudice that gets you there perhaps? When should we do it? You had an informal briefing and that's what it's for to brief us as to where we should go. And as you know, waivers should be the first thing you waive pardon the puns at us when it exists. And Judge Greggert, I certainly wish I had asserted the waiver. I understand. I'm not. But in terms of force, that is the side of this case. Why shouldn't that fall? The sort of democlease fall on your neck? And to respond to the question, the case is cited by the petitioner all involved cases where the government either explicitly waived or did not file a brief raising the waiver. Here we did file a brief raising the waiver. We just filed another brief before that. But that brief was essentially replaced by the second brief. And so some of the concerns that would inform situations where the waiver comes in late at the last minute are not present here because the petitioner did have an opportunity to respond to our arguments regarding the appeal waiver. So that's our position on waiver. But for the reasons discussed, the government would ask that this court affirm the denial or the dismissal of petitioner's motion in this case. And if the court doesn't have any further questions, I would yield the balance of my time. Okay, thank you, Mr. Miller. Mr. Taylor, you have some time. Thank you, Your Honor. I would just say that the government didn't say anything about Corm Nova's applying to the appeal waiver. So that's certainly still on the tables and alternative source of relief for Mr. Harrison. If the court believes the waiver would apply to his 2025 motion before the court in the moment. And I'll also add that because the government sort of sat on its right, if you will, until a couple months a month ago. What did the government respond to Corm Nova's in a brief? Not on the appeal waiver issue. They never asserted that the appeal waiver applied to his writ of Corm Nova's. And I'll add that Mr. Harrison has been prejudiced by them sort of sitting on their right, if you will

. But in terms of force, that is the side of this case. Why shouldn't that fall? The sort of democlease fall on your neck? And to respond to the question, the case is cited by the petitioner all involved cases where the government either explicitly waived or did not file a brief raising the waiver. Here we did file a brief raising the waiver. We just filed another brief before that. But that brief was essentially replaced by the second brief. And so some of the concerns that would inform situations where the waiver comes in late at the last minute are not present here because the petitioner did have an opportunity to respond to our arguments regarding the appeal waiver. So that's our position on waiver. But for the reasons discussed, the government would ask that this court affirm the denial or the dismissal of petitioner's motion in this case. And if the court doesn't have any further questions, I would yield the balance of my time. Okay, thank you, Mr. Miller. Mr. Taylor, you have some time. Thank you, Your Honor. I would just say that the government didn't say anything about Corm Nova's applying to the appeal waiver. So that's certainly still on the tables and alternative source of relief for Mr. Harrison. If the court believes the waiver would apply to his 2025 motion before the court in the moment. And I'll also add that because the government sort of sat on its right, if you will, until a couple months a month ago. What did the government respond to Corm Nova's in a brief? Not on the appeal waiver issue. They never asserted that the appeal waiver applied to his writ of Corm Nova's. And I'll add that Mr. Harrison has been prejudiced by them sort of sitting on their right, if you will. I mean, he filed his first 2255 motion in 2004. And the government could have, you know, came into the district court said, uh, waiver, waiver, waiver, but you know, let it go through. And Mr. Harrison may have approached his case a little bit differently over the preceding 10 years in the interim. I'll also add, Your Honor, that in terms of the ripeness issue, you know, the Supreme Court and Johnson has already stated that a claim is not right until the state predicate offenses vacated. So we're not really expanding when something becomes second or successive. I know Johnson and Deal is second or successive, but it's certainly dealt with a ripeness issue. And it doesn't become ripe until that predicate offense is vacated. And I think it's important to note that Stewart is from the 11th Circuit, which may tend to take a more conservative view on rights of prisoners. And it's notable that even, that they made the determination that this does not constitute second or successive after you've had that when you have a predicate offense vacated, that's when the conviction becomes right. I'll quickly on due diligence. The government's here is making a lawyer's argument for a pro-say point to Mr. Harrison. In his informal brief, actually, again, states he didn't do it. And, you know, I'll represent to this correct. I speak to Mr. Harrison on a weekly basis. He's a very active client. And every time I speak to him, he tells me he did not commit this offense. How did he get it vacated? He ultimately got it vacated on right to counsel. He submitted a motion that says I didn't have counsel with the hearing. He doesn't mention in that particular motion one way or another whether he was actually present at the hearing. And in the second, 2255 motion, that may have been prepared by someone else helping it out, helping him out

. I mean, he filed his first 2255 motion in 2004. And the government could have, you know, came into the district court said, uh, waiver, waiver, waiver, but you know, let it go through. And Mr. Harrison may have approached his case a little bit differently over the preceding 10 years in the interim. I'll also add, Your Honor, that in terms of the ripeness issue, you know, the Supreme Court and Johnson has already stated that a claim is not right until the state predicate offenses vacated. So we're not really expanding when something becomes second or successive. I know Johnson and Deal is second or successive, but it's certainly dealt with a ripeness issue. And it doesn't become ripe until that predicate offense is vacated. And I think it's important to note that Stewart is from the 11th Circuit, which may tend to take a more conservative view on rights of prisoners. And it's notable that even, that they made the determination that this does not constitute second or successive after you've had that when you have a predicate offense vacated, that's when the conviction becomes right. I'll quickly on due diligence. The government's here is making a lawyer's argument for a pro-say point to Mr. Harrison. In his informal brief, actually, again, states he didn't do it. And, you know, I'll represent to this correct. I speak to Mr. Harrison on a weekly basis. He's a very active client. And every time I speak to him, he tells me he did not commit this offense. How did he get it vacated? He ultimately got it vacated on right to counsel. He submitted a motion that says I didn't have counsel with the hearing. He doesn't mention in that particular motion one way or another whether he was actually present at the hearing. And in the second, 2255 motion, that may have been prepared by someone else helping it out, helping him out. So I sort of question the validity of that particular statement. And then the last point that you're on are, and this is to Judge Davis's point on resetting. Look, anything's possible, but it's certainly up to the government to persuade the district court that he should get the same sentence that he has now. And Mr. Harrison has invited this vacated offense a right to at least try that out. And I'll add this, every time Mr. Harrison has been resettanced even over the government's objections. It's always been at the low end of that particular guideline range. And to answer your question, just Judge Davis, he's actually almost done with his sentence. If he's sentenced is reduced to the low end of the new guideline range, he'd be very close. I think just a maybe six months or so shy of being able to get out of prison. I mean, that's a huge thing to Mr. Harrison. I mean, that's that's real time to. Yeah, I didn't mean that I really didn't mean to suggest that he was there was a four-long conclusion. Who knows what rehabilitative activities he's engaged in since he was sentenced and who knows what, what if any, wait the district court might give to that. So I shouldn't have been as forthright, I guess, is forceful and suggesting that he would get the same sentence. No, of course not, Your Honor. But I guess the bigger point is he at least should have the opportunity to try before the district court to see if he would get a reduced sentence less than 22 months when he went through, frankly, an extreme effort to get this conviction vacated on the basis, the ultimate basis of right of counsel. Unless there are any other questions from the court, we appreciate your time and we ask that Mr. Harrison's conviction be vacated and remanded to the district court for resensing. Sure. What's your best argument against it? It shouldn't be that in fact the government did weigh

. So I sort of question the validity of that particular statement. And then the last point that you're on are, and this is to Judge Davis's point on resetting. Look, anything's possible, but it's certainly up to the government to persuade the district court that he should get the same sentence that he has now. And Mr. Harrison has invited this vacated offense a right to at least try that out. And I'll add this, every time Mr. Harrison has been resettanced even over the government's objections. It's always been at the low end of that particular guideline range. And to answer your question, just Judge Davis, he's actually almost done with his sentence. If he's sentenced is reduced to the low end of the new guideline range, he'd be very close. I think just a maybe six months or so shy of being able to get out of prison. I mean, that's a huge thing to Mr. Harrison. I mean, that's that's real time to. Yeah, I didn't mean that I really didn't mean to suggest that he was there was a four-long conclusion. Who knows what rehabilitative activities he's engaged in since he was sentenced and who knows what, what if any, wait the district court might give to that. So I shouldn't have been as forthright, I guess, is forceful and suggesting that he would get the same sentence. No, of course not, Your Honor. But I guess the bigger point is he at least should have the opportunity to try before the district court to see if he would get a reduced sentence less than 22 months when he went through, frankly, an extreme effort to get this conviction vacated on the basis, the ultimate basis of right of counsel. Unless there are any other questions from the court, we appreciate your time and we ask that Mr. Harrison's conviction be vacated and remanded to the district court for resensing. Sure. What's your best argument against it? It shouldn't be that in fact the government did weigh. Well, I think the most important thing to keep in mind about the waiver is that it's just, frankly, fundamentally unfair to force a man to sit and prison for two more years, potentially up to two more years. On a conviction he didn't commit when he had absolutely no knowledge. This conviction was even out there when he signed that plea agreement. This isn't a case where he knew about the conviction but didn't know it would be used to enhance his sentence. That's a different deal here. We have a situation where this man had absolutely no knowledge that this conviction existed. It's just, frankly, unfair to let him to be punished for something that he didn't commit. That's not what we do here in our justice system. All right. Thank you very much. Ms. Taylor, I know that you are court-appointed. I want to especially give you thanks for that and behalf of the court. Thank you, Your Honor. And I'll add that this is a case that was worked on by the West Virginia University College of Law Clinic. So this is the work of our students that Mr. Rosenberg and I teach. Well, we thank the Academy and it's able students and like I said, we couldn't do our work without help but we appreciate that. And likewise, Mr. Miller, we appreciate your able representation of the United States. We're going to come down on Greek Council Book.

Thank you. Is Taylor? Thank you, Your Honor, and good morning. Mr. Harrison's criminal history rage was increased because his pre-sentencing report contained a state predicate offense for driving without a license in North Carolina. Prior to receiving his pre-sentencing report, Mr. Harrison had no knowledge of this predicate offense. And he has consistently maintained that he didn't commit it. He wasn't aware of any merit-tearing and he didn't attend any such hearing. He also didn't have right of counsel at any hearing. Mr. Harrison was sent after Mr. Harrison was sentenced. He worked diligently to vacate this conviction, which he ultimately achieved in August of 2011. Shortly thereafter, Mr. Harrison filed his numerically second, 2255 motion, seeking to be recentenced in light of his vacated predicate offense. And the district court summarily denied Mr. Harrison's motion as an improper second or successive motion under 2255. Mr. Harrison's numerically second, 2255 motion is not second or successive because the basis for this motion did not ripen until his state conviction had been vacated. In this court, it's well settled law that not every numerically second petition is considered second or successive under 2255. And even more to the point, this court has also held that a numerically second motion is not second or successive when the claim for the subsequent motion fails to arise until after the first 2255 motion is filed. And actually, the government admits this in its briefing. The government specifically says on page 22 and 23 of their brief that when the basis for the claim was not ripe at the time of the first petition, the motion is not considered second or successive. And that's what we have here, Your Honor. Mr. Harrison's claim did not ripen until his state predicate offense was vacated. But before we get to that, didn't appellant wave this in the plea agreement? As an initial matter, Your Honor, the government has waived its right to assert this plea waiver defense because it failed to do so at the earliest part of the process. What if we find that the government didn't waive the waiver argument? In that case, Your Honor, the appeal waiver does not apply to Mr. Harrison's current appeal for three key reasons. The first is that this court has refused to enforce appeal waivers and cases that involve errors that the defendant could not have reasonably foreseen when the plea agreement was executed. And Mr. Harrison's case, he signed his plea agreement in February of 2002. At the time he signed this agreement, Mr. Harrison could not reasonably enforce that a predicate offense of which he had no knowledge of and has maintained that he was never convicted of, didn't know anything about a hearing, didn't attend to hearing, would be used against him to enhance his sentence. Mr. Harrison. About the time of sentencing, he was aware of it. He was Your Honor, which was six months later. So there was a six month gap between when he signed the plea agreement and when he received his pre-sentencing report, which is his first notification of this state predicate offense. In short, Your Honor, it's just not reasonably foreseeable. He moved to his draw. I'm sorry, Your Honor. Did you move to his draw, the plea? He did not, Your Honor, but he did challenge the predicate offense that his hearing. He said that he didn't commit the offense and was not successful in that challenge. But also at his plea, at his sentencing, it was a little confusing as to whether he had the right to appeal a sentence or not. At the very end of his sentencing, the district court did say, you have a right to appeal my judgment. You're entitled to appeal the court's judgment, which is similar to what happened to the defendant in the United States mannequin case of this court, where Mr. Manigan had abroad a peel waiver in his plea agreement. But at the end of the rule 11 hearing and then again at the end of sentencing, the district court told Mr. Manigan that he had a right to appeal. And that's similar to what happened to Mr. Harrison here. At the end of his sentencing hearing, the district court said, you're entitled to appeal the court's judgment. And given these statements at the sentencing hearing that are contrary to the peel waiver, Mr. Harrison could hardly be said to have a knowing way of this right. Mr. Mastell, going back to Judge Gregory's question, what do you think about the rule in this circuit is that you have to move to withdraw your plea, right, in order for narrowly to get relief in circumstances such as these. Would you agree with that? No, you're right. I don't think it's necessary to do that in this case because- No, I mean generally, not so much about this case. I'm going to ask you about this case, but isn't it the rule in this circuit that if you sign a plea waiver, an appeal waiver and a plea agreement, and then something surfaces between the time of the plea and the sentencing. Is the rule in this circuit pretty much that you've got to move to withdraw in order to put yourself in position to challenge something? I don't think that's necessarily the case and it's particularly not in the circumstances of Mr. Harrison. You know, when Mr. Harrison was at sentencing, his conviction wasn't vacated yet. So it would have been very difficult for him to have sought any relief until that conviction is actually vacated. And he had to go through a long lengthy process in the state court to accomplish that. Many times there's a request to continue the sentencing. And there was one granted in this case so that his attorney could do some sort of investigation into this particular conviction. The attorney, which I think was court appointed, did I guess investigate that Mr. Harrison may have been in North Carolina at the time the conviction occurred, but didn't do any further investigation as to whether the conviction was ultimately valid and applied to Mr. Harrison, which was Mr. Harrison's ultimate contention. And to Mr. Harrison's credit, he filed an ineffective assistance of council claim in his first 2025 motion, saying ineffective assistance for failing to object to the false information that was used to enhance the sentence. And again, to his credit, as a pro-say petitioner was able to work his way through the state forum to ultimately get this conviction vacated, which is something that, you know, effective lawyer should have been able to have done. I also add, your honor that this court has also refused to enforce an appeal waiver if doing so would result in a miscarriage of justice, or it would be fundamentally unfair to do so. And it would be fundamentally unfair to allow Mr. Harrison to sit in prison for a longer period of time when the basis for a sentence enhancement has been vacated. That fact no longer exists. And in this court's recent decision in White side, which I know Judge Gregory and Judge Davis wrote the majority, or did the majority for the opinion, the court talked about the concept of fundamental unfairness and decided that it would be fundamentally unfair not to allow defendants to be resettanced when the district court used a predicate offense to enhance the defendant's sentence under the career of under statute, when that predicate offense was later determined not to qualify under that particular statute. In discussing the fundamental unfairness requirements, the court also discussed the Supreme Court's decision in Davis, where the Supreme Court determined it would be a miscarriage of justice to allow defendants to be punished, when the condetic at issue is later determined not to be criminal. And that's what we have here, Mr. Harrison's case. His case is even more unfundamentally of bear than what was presented in White side. And more candid Davis, like Mr. Davis, Mr. Harrison is being punished by having to sit in prison longer, for a crime that is no longer on his record, but a crime that has been successfully vacated through the state forum. And lastly, I'll add your honor in terms of the motion to dismiss issue. Mr. Harrison, in his briefing, has also raised as an alternative relief the right to seek rid of court of nobis. And the appeal waiver would not apply to Mr. Harrison's rid of court of nobis, and the government has never contended that it does. While it's true that this court has suggested that court nobis may not be available, what it did, if it is imprisoned, this court has expressly recognized the court nobis is available when no other remedy exists. And other circuits have recognized that there shouldn't be an absolute bar to court nobis if you happen to be imprisoned, especially when relief under 2255 is unavailable or inadequate. So if Mr. Harrison cannot seek relief to have to be resettanced in light of this vacated predicate offense under 2255, then he should be allowed to do so under a rid of court of nobis. It's just fundamentally unfair to let a man sit in prison for up to two more years for a crime that is no longer on his record, and he's always maintained he didn't commit. So turning back to the second or successive issue your honor, this court in Johnson, or I'm sorry, the Supreme Court in Johnson has determined that when a conviction is predicate offense is vacated, that serves to ripen the claim to bring that. And again, that's what we have here. The government has not undermined any of the precedent from the four circuit or the Supreme Court, but instead relies on a single case from the seven circuit, the unthink decision. And that's in applicable to the four circuits approach to dealing with second or successive. The seven circuit has taken a different perspective on the meaning of second or successive under 2255. They have rejected the idea of incorporating the abuse of the writ standard and tend instead to interpret second or successive literally. And that's contrary to what this court has determined in past precedent. Additionally, factually unthink is different than Mr. Harris in this case. Mr. Unthink, after his predicate conviction was reduced or vacated, then filed, I believe, four motions under 2255, and then finally appealing to the seven circuit, the fourth one. Mr. Harris, and after his predicate of conviction was vacated, filed one motion, the motion that we're here on appeal today. Briefly, your honor, the government has raised a couple of other technical reasons as to why Mr. Harris and should not be allowed to proceed with his appeal. The first one is that he is somehow procedurally defaulted from bringing this claim under the CUSTA's decision from the United States Supreme Court. CUSTA is an applicable to Mr. Harris and his claim. It dealt with a defendant that's trying to vacate a state prediction, predicate offense through a federal sentencing hearing. Mr. Harrison has already done that. And CUSTA has held the defendant may challenge a state predicate offense at sentencing if based upon the violation to right counsel. CUSTA has never said that you must do that, or you'll be procedurally barred from later reopening your sentencing after you successfully vacated the conviction through the state forum. No court has said that that we're aware of, and the government hasn't pointed to any. If anything, CUSTA simply opened another door, another avenue to pursue the vacatory of a predicate offense based on violation of the right to counsel. And importantly, I'll note that in Johnson, the Supreme Court where a predicate offense was vacated and the defendant at least had a viable claim to reopen his sentencing, that conviction was also vacated on the right violation of the right to counsel. And the Supreme Court never said that he was barred under CUSTA's. And additionally, I'll just practically urutter. There's a reason why the CUSTA's language is not mandatory. I would just be incredibly difficult for a federal court, even under the best of circumstances to undermine a state court conviction the best way, and the most efficient way to vacate a state predicate offense is through the state forum, which is what Mr. Harrison did here. Briefly, the government is contended that Mr. Harrison doesn't have a claim under 2255 attempting to mischaracterize Mr. Harrison's claim as sort of a calculation error under the sentence and guidelines. That's not what we have here. Johnson is pretty clear that when you have a vacated predicate offense, you at least have a viable claim under 2255. This is not a case where there was a calculation error by the district court or the district court aired and how it interpreted the predicate offense, whether it should be classified as something instead of something else. Instead, this is an issue where the conviction was completely white from Mr. Harrison's record. The government briefly mentions Mr. Harrison is under Johnson required to have pursued his state predicate offense with due diligence. He did so here approximately six months after he sentence was finalized. He filed his first motion state court to attempt to have the state court conviction vacated. He filed another motion, state court in 2005, and then didn't hear anything from the state court even though he had friends and family ask about the issue. He was diligent though and continued to pursue the issue, filing a third motion in June of 2011, which the state court finally acknowledged and acted on and ultimately vacated Mr. Harrison's predicate offense. The government briefly states with no citation the case law that Mr. Harrison did not act with due diligence because he did not pursue the claim on the basis of right of counsel in every single motion he filed with the state court. That is an unfair standard for a pro-say plaintiff. Mr. Harrison was always consistent in why his conviction should be vacated, which is that he wasn't there. He didn't commit it. He wasn't aware of meers hearing. It's not a jump to say that he also didn't have right to counsel. He worked diligently to get this done. Additionally, you're on our, we have, like we've talked briefly about core of nobice as another way of which Mr. Harrison can also have a turn of relief. And also, if the court determines that Mr. Harrison's claim is second or successive, then it should grant him the ability to pursue that under the actual innocence exception under 2255. As this court has said in the Mayback decision, you can be actually innocent of a sentence enhancement with the vacated conviction off of Mr. Harrison's record. He is actually innocent of having a career history level of four and set of three. And I believe I have some time for a rebuttal, so I appreciate your time. Thank you very much, Mr. Taylor. Mr. Miller. May I please the core of my name is William Miller here on behalf of the United States. Petitioners' motion is subject to dismissal for several reasons, including waiver. But I'd like to clarify something in the record at the outset of my argument if I may. Petitioners' council has argued several times in her briefing and here today that the petitioner has consistently maintained that this prior conviction didn't happen. That's simply not true if you look at the record. And I'd call the court's attention to page 79 of the Joint Appendix. This is where the petitioner's 2255 motion in the district court appears. The motion that was ultimately denied a second or successive that the appeal of which brings us here today. And if you look at the first paragraph of that motion, the petitioner is describing this prior conviction. And what he says is that the petitioner on November 30, 1991, which issued a traffic citation for no operators license. And here's the important part. The petitioner on April 8, 1992 appeared to face the charge and plead guilty to the charge. The court imposed the sentence of six months and imposed a find of $100. That motion then goes on from there to argue that because he didn't have right to counsel, he was able to successfully flatarily attack it. But this paragraph here shows that this whole argument of I wasn't there, it wasn't me, somewhere along the line, the petitioner realized that it was him. But I thought we were here because it's undisputed that now it's been vacated. It has been vacated. Okay. So what doesn't matter whether I'm not I'm not sure I'm following you. The reason that this is important, Judge Davis, is because even accepting the petitioner's view of this rightness exception to the bar on seconder successive petitions, the Stewart court and the other courts that have found this kind of thing is accepted from that bar have still required due diligence. And so in this case, this shows that the petitioner's initial challenge in the state court, which was based on I wasn't there, it wasn't me, was somewhere along the line dropped. She just describes this as sort of a long path to getting his conviction vacated. Well, what this shows is somewhere along the line, he switched paths. This was not about I wasn't there, it wasn't me. It was a challenge based on right to counsel. And that challenge by petitioner's own admission, it wasn't raised with the state district court until 2011, which is more than eight years after the judgment in the federal case became final. And so that diligence requirement that these other courts have imposed in these rightness cases with vacated convictions comes from Johnson. And that's the Supreme Court case. And in Johnson, the diligence requirement began when the federal sentence was imposed. And in Johnson, the court held that 21 months was not sufficient diligence. Here, the petitioner waited eight years before he brought his claim based on the right to counsel issue. And that's just not sufficient diligence, even if the petitioner's view of the rightness in section is accepted. So is it diligence in challenging the underlying conviction? Correct. Yes, Your Honor. Okay. And what is the timeline here? The timeline here is that within six months, he filed a motion with this district court and state district court asserting actual six months of sentencing in federal court. Correct. Right. File a motion saying actual innocence, it wasn't me. Okay. And that's the only motion we have in the record. There's also a representation in the brief that he filed a second motion in 2005. Somewhere along the line though, it apparently became clear to the petitioner that it was in fact him. He admits his months in this subsequent motion. Okay. And he got it, he got it vacated. He got it vacated. That was based on a motion filed in 2011 on the right to counsel issue. So your argument is that he waited too long to be aggressive enough to do whatever was necessary to be done to get the conviction vacated. The government's argument is that he waited eight years to assert the claim that led to the vacation. But you keep saying assert the claim. He couldn't assert the claim until he got it vacated. I was sorry, I didn't mean that. I was being unclear. What I meant was he waited eight years to file the motion with the state court. But I thought you said he filed a motion six months after sends. The government's argument here, that was a different path. That's on this actual innocence. It wasn't me, which clearly based on the court. So you believe that it wasn't me, theory of vacator is different from yet was me, but for whatever reason, you should vacate it. You don't see that as just a continuous effort to get a conviction vacated. No, but even if the court accepts the defendant's version of events, which is motion in 2003, motion in 2005. I thought you were accepting that. Well, if the court characterizes them as all part of one path as opposed to switching paths, there's still a gap between 2005 and 2011. 2011 is the motion that got this vacated and it was on an entirely different basis. And so that's the government's argument. He was represented by counsel or did he do it on his own? I believe he was he was pro-say in 2011, but as the Johnson court held 21 months for a pro-say defendant, that wasn't sufficient diligence. And here, the government's position is he switched paths altogether and once he realized as he represented here that it was me, I was the one who was there pleading guilty. He brought an altogether different claim, but he did so. See, I don't see it as a different claim. You got a conviction. I mean, if you're trying to get it vacated because it was used to enhance, I just don't see it as a separate claim. It's a claim that I want this conviction vacated. And for whatever reason I can come up with or prove, but I see your position, you think it's, I mean, do you think he was lying or do you think he just forgot? I mean, sometimes I think he was a matter of... I think he was a matter of... I think he was a matter of... I think he was a matter of... I think he was a matter of what they were convicted of. Well, and the record shows he had five or six... Right. ...victions for driving with no, regardless of life. So it could have been a matter of confusion, but it's still... The point still remains that he didn't bring this claim on right to council issues until eight years after the judgment came. Even setting aside the diligence, however, the government believes that this court should not interpret the exception for successive petitions based on unright claim so broadly. To adopt the position taken by the 11th Circuit and the Stewart case would essentially render the exceptions in Edpa obsolete in many ways. And the reason for that is that there are two exceptions as the court I'm sure is aware for successive petitions in the statute. One is for claims that are based on a new rule of constitutional law that's been made retroactive by the Supreme Court, and the second is for new evidence that shows innocence of the offense. And so if the bar on successive petitions is expanded to allow for any claim that wasn't right or couldn't have been brought before, taken to which logical extension would completely render those exceptions obsolete. The 11th Circuit has taken that position here, I'd say there's two distinctions. Was that sister wrong? Well, your sister in the 7th Circuit was right, your sister in the 11th Circuit was wrong. And that brings me to another clarification. To say that the jurisprudence in the 4th Circuit and the 7th Circuit is completely opposite on this issue of the rightness exception is simply a red herring. I mean, what petitioner has done is cite a couple of statements early on that the 7th Circuit made about abuse of the writ is dead, but if you look at the way the 7th Circuit has interpreted Edpa since that time, and including in those very cases, it's apparent that the 7th Circuit also allows this narrow limited exception for certain claims that were unright at the time that the initial motion was filed. And so, in fact, the Taylor case, which is the case that petitioner holds up as, look, this is the 4th Circuit case that stands in contrast to the 7th Circuit case. The holding in that case actually cites to a 7th Circuit case. And so it's just not the case that the 7th Circuit is so out of step with all other circuits. That being said, the 7th Circuit's analysis and unthink is the better reason to approach. And the reason is that it used more closely to the statute for the reasons Alice describing earlier. There's these two exceptions in 2255 age to say that any time you have an unright claim, you can come back in here, would render those completely obsolete. And one of those exceptions is for new evidence or new facts. That new evidence or new facts by statute has to relate to the offense. Here, the new evidence or facts relate to a aspect of the sentence. And so, to expand the unright miss claim to incorporate those types of errors, would render 2255 age 1 effectively obsolete because you could come in with new evidence as to any part of the criminal matter, not just the evidence of guilt of the offense. And so, for those reasons, the government's position on this first question about whether or not it's a second or successive petition is that that would essentially broaden this narrow exception for unright claims too far. And that even if you accept that position that the petitioner urges, there was a lack of diligence. But you agree that if we find Stuart persuasive, apart from diligence, we hold that this is not far, right? There's another distinction with Stuart that the court views is important. What's that? And in Stuart, the predicate conviction was related to a career fender error. And here, the error is based on a criminal history point. And in order to have a cognizable claim under 2255, in these circumstances, where the parties agree this is a constitutional sentence, and this is a lawful sentence, the petitioner has to show that it's otherwise subject to collateral attack. And that requires a very high showing, which is a miscarriage of justice or fundamental defect that renders the entire process irregular or invalid. And as this is the case, I'm sorry to interrupt, but actually, I wanted to ask this question. We're arguing here over one criminal history point. Correct. And he's already had two reductions in his sentence. That's true, Your Honor. So, you look like a pretty good lawyer to me. Would you be concerned that you couldn't persuade the district court to give him the same sentence that he's now serving if this actually went back? Well, I mean, really? Perhaps, but that's really not the question we have. Well, I just think that's the question I asked. Right. It's the question I asked. And the question he's got 210 months. How far along is he, by the way? He's probably what? He's well over halfway through that. Right. And we're talking about what? We're talking about what? 16 months? I don't know. Do you know what are we talking about? He got 210 and the range is 188 to 235. So is that okay? So that would so the the new range would be what? One new range would be 188 to 235 to 235. What was the range when he got to 210? 210 and 210 was the bottom. So 210 was the bottom. So is there any reason possibility he's going to get anything other than the exact same sentence? There's a reason that there's a possibility, but your honor is question. Do you really think this possibility judge is going to give him a reduced sentence? It's possible he'd be sentenced to 10 is right in the middle of the. Correct. But even if it regardless, your honor's line of questioning actually supports the government's argument that this is not a cognizable claim under 2255. I has to do certain things and take certain positions and dedicate certain matters because sometimes matters are more important than just the single case. I do I do understand that and I respect that. And that but it does raise some serious questions. Well, this is an example of that case because the this is an example of a case where you could have gone back before the district court and gotten the same sentence and you wouldn't even be here. But I understand the district court rejected because you objected. Now you're up before the fourth circuit. We've had a point in council. Yada yada yada. And the chance that he's going to get anything less than 210 months, even if we rule in his favor here is shall we say, de minimis? And that's generous. And I agree. And I just wonder why sometimes just to clarify the record in this case, the court ruled on the motion without ordering. Correct. So at the district court, we actually did not take a position. So you're sort of here defending something that you never had a chance to respond to in the district court. But it is important for the reasons, you know, your honor recognized, which is that these barriers to post conviction claims are important. It's important for the government to enforce, you know, edpa and the concerns for finality. No doubt about it. But to your honor's point, the fact that the defendant could have, and in fact, likely would receive the same sentence, shows that this type of case does not present the fundamental mischaracter of justice that's required for a cognizable claim under section 2255. And to sort of take this whole thing out of order just to address some of the petitioner's arguments about waiver. What about councils at the white side impacts on their argument? She thinks that she's a favorite player of style. And the government believes that white side actually supports its position. And the reason is that in white side, Judge Gregory in writing for the majority was very careful to highlight how- You mean me? Yes, you your honor. The distinguished was careful to highlight how career fender error is different from other guidelines errors. That was part of the analysis and rationale and why that type of error did just a fire relief on collateral review. And so the government's perspective is that white side, in fact, supports our position that this is not a cognizable claim because the error in this case is much more like the ordinary guidelines error that the court was very careful to distinguish from career fender error and white sides. Now you can tell us now why you think you didn't waver objection. Well, the waiver of waiver, in this case, the government admittedly filed an informal brief or that issue wasn't raised. But this is not a case where the government didn't file a brief of taking a position on waiver. We did when formal briefing was ordered when both parties augmented their positions. And- But you had a chance. That's why we wanted to do that early on. And you did do so. And I wish I had. But this is not a case where petitioner was unfairly prejudiced. The petitioner had a response, the chance to respond, file a response. But we don't require prejudice, do we? In this context? The analysis is whether or not the government explicitly or implicitly waived. And so here, the argument would be that the government implicitly waived in an informal brief and responding to an informal, predatory brief. Yeah, I've always been what- Since I've been on this court, it's really been curious to me how frequently the government does not invoke waiver. Can you explain that as an aside? Not your own personal practice. But really, I've been- I mean, I was on the district court when this tsunami of appellate waivers washed over the federal courts. When I was a prosecutor back in the 80s, nobody ever thought that to demand an appellate waiver as a part of a plea agreement. And then little by little, some offices, not necessarily around the circuit, but certainly some offices began to do that. And then it became a part of the formal protocol, right? I mean, it's right there, I guess, in the US Attorney's Man. You must insist on an appellate waiver. And in fact, you remember we had that case, Judge Matzrow, this wonderful opinion in which she said refusal to waive appeal could not be a grounds for withholding the third point for acceptance of responsibility, right? So that was sort of the extreme that the US Attorney's offices were taking. And now I come up to the fourth circuit, happy to be here. And I'm sitting on these screencases, and it seems like one or two out of every five, the government doesn't even invoke waiver. So why put them in the plea agreements if you're not going to invoke it? I can't really speak with that. Fair enough. And our district is also where the Simmons litigation has originated. There I even utter that word. There's all kinds of waiver concerns going on there. So my experience. What is the jurisprudential metric we should use since a lack of prejudice that gets you there perhaps? When should we do it? You had an informal briefing and that's what it's for to brief us as to where we should go. And as you know, waivers should be the first thing you waive pardon the puns at us when it exists. And Judge Greggert, I certainly wish I had asserted the waiver. I understand. I'm not. But in terms of force, that is the side of this case. Why shouldn't that fall? The sort of democlease fall on your neck? And to respond to the question, the case is cited by the petitioner all involved cases where the government either explicitly waived or did not file a brief raising the waiver. Here we did file a brief raising the waiver. We just filed another brief before that. But that brief was essentially replaced by the second brief. And so some of the concerns that would inform situations where the waiver comes in late at the last minute are not present here because the petitioner did have an opportunity to respond to our arguments regarding the appeal waiver. So that's our position on waiver. But for the reasons discussed, the government would ask that this court affirm the denial or the dismissal of petitioner's motion in this case. And if the court doesn't have any further questions, I would yield the balance of my time. Okay, thank you, Mr. Miller. Mr. Taylor, you have some time. Thank you, Your Honor. I would just say that the government didn't say anything about Corm Nova's applying to the appeal waiver. So that's certainly still on the tables and alternative source of relief for Mr. Harrison. If the court believes the waiver would apply to his 2025 motion before the court in the moment. And I'll also add that because the government sort of sat on its right, if you will, until a couple months a month ago. What did the government respond to Corm Nova's in a brief? Not on the appeal waiver issue. They never asserted that the appeal waiver applied to his writ of Corm Nova's. And I'll add that Mr. Harrison has been prejudiced by them sort of sitting on their right, if you will. I mean, he filed his first 2255 motion in 2004. And the government could have, you know, came into the district court said, uh, waiver, waiver, waiver, but you know, let it go through. And Mr. Harrison may have approached his case a little bit differently over the preceding 10 years in the interim. I'll also add, Your Honor, that in terms of the ripeness issue, you know, the Supreme Court and Johnson has already stated that a claim is not right until the state predicate offenses vacated. So we're not really expanding when something becomes second or successive. I know Johnson and Deal is second or successive, but it's certainly dealt with a ripeness issue. And it doesn't become ripe until that predicate offense is vacated. And I think it's important to note that Stewart is from the 11th Circuit, which may tend to take a more conservative view on rights of prisoners. And it's notable that even, that they made the determination that this does not constitute second or successive after you've had that when you have a predicate offense vacated, that's when the conviction becomes right. I'll quickly on due diligence. The government's here is making a lawyer's argument for a pro-say point to Mr. Harrison. In his informal brief, actually, again, states he didn't do it. And, you know, I'll represent to this correct. I speak to Mr. Harrison on a weekly basis. He's a very active client. And every time I speak to him, he tells me he did not commit this offense. How did he get it vacated? He ultimately got it vacated on right to counsel. He submitted a motion that says I didn't have counsel with the hearing. He doesn't mention in that particular motion one way or another whether he was actually present at the hearing. And in the second, 2255 motion, that may have been prepared by someone else helping it out, helping him out. So I sort of question the validity of that particular statement. And then the last point that you're on are, and this is to Judge Davis's point on resetting. Look, anything's possible, but it's certainly up to the government to persuade the district court that he should get the same sentence that he has now. And Mr. Harrison has invited this vacated offense a right to at least try that out. And I'll add this, every time Mr. Harrison has been resettanced even over the government's objections. It's always been at the low end of that particular guideline range. And to answer your question, just Judge Davis, he's actually almost done with his sentence. If he's sentenced is reduced to the low end of the new guideline range, he'd be very close. I think just a maybe six months or so shy of being able to get out of prison. I mean, that's a huge thing to Mr. Harrison. I mean, that's that's real time to. Yeah, I didn't mean that I really didn't mean to suggest that he was there was a four-long conclusion. Who knows what rehabilitative activities he's engaged in since he was sentenced and who knows what, what if any, wait the district court might give to that. So I shouldn't have been as forthright, I guess, is forceful and suggesting that he would get the same sentence. No, of course not, Your Honor. But I guess the bigger point is he at least should have the opportunity to try before the district court to see if he would get a reduced sentence less than 22 months when he went through, frankly, an extreme effort to get this conviction vacated on the basis, the ultimate basis of right of counsel. Unless there are any other questions from the court, we appreciate your time and we ask that Mr. Harrison's conviction be vacated and remanded to the district court for resensing. Sure. What's your best argument against it? It shouldn't be that in fact the government did weigh. Well, I think the most important thing to keep in mind about the waiver is that it's just, frankly, fundamentally unfair to force a man to sit and prison for two more years, potentially up to two more years. On a conviction he didn't commit when he had absolutely no knowledge. This conviction was even out there when he signed that plea agreement. This isn't a case where he knew about the conviction but didn't know it would be used to enhance his sentence. That's a different deal here. We have a situation where this man had absolutely no knowledge that this conviction existed. It's just, frankly, unfair to let him to be punished for something that he didn't commit. That's not what we do here in our justice system. All right. Thank you very much. Ms. Taylor, I know that you are court-appointed. I want to especially give you thanks for that and behalf of the court. Thank you, Your Honor. And I'll add that this is a case that was worked on by the West Virginia University College of Law Clinic. So this is the work of our students that Mr. Rosenberg and I teach. Well, we thank the Academy and it's able students and like I said, we couldn't do our work without help but we appreciate that. And likewise, Mr. Miller, we appreciate your able representation of the United States. We're going to come down on Greek Council Book