Actual Innocence Exception Allows Grant of Late Postconviction Motion to Overturn 924(c) Conviction

Barriera-Vera v. United States, No. 23-cv-1333-SCB-TGW, 2023 U.S. Dist. LEXIS 134678 (M.D. Fla. July 10, 2023)

In a shocking move, the U.S. District Court for the Middle District of Florida granted postconviction relief to a prisoner who filed his motion three years too late, saying the “actual innocence exception” forgave his lateness.

Jose Barriera-Vera was charged with bank robbery and attempted bank robbery, and two counts of using a firearm, under 18 U.S.C. § 924(c), in furtherance of each of those crimes. In the end, he was convicted of all counts and handed 3 years, 7 years, and 25 years, all consecutive.

Years later, the Supreme Court decided a pair of cases that invalidated Jose’s second § 924(c) conviction and its 25-year mandatory sentence. First was United States v. Davis, 139 S. Ct. 2319 (2019), declaring the residual clause of § 924(c) unconstitutional. That didn’t help Jose because the U.S. Court of Appeals for the Eleventh Circuit still considered attempted bank robbery valid under the elements clause. But then came United States v. Taylor, 142 S. Ct. 2015 (2022), the Supreme Court holding that attempted Hobbs Act robbery cannot fall under the elements clause of § 924(c). The Eleventh Circuit then admitted in another case that attempted bank robbery couldn’t fall under the elements clause after Taylor.

However, Jose had already filed his one good shot at relief under 28 U.S.C. § 2255, so he had to get permission from the Eleventh Circuit to file another § 2255 motion. To do so, he needed to show (1) that there was a retroactive Supreme Court decision based on a constitutional (not statutory) issue, (2) that it applied to his case, and (3) that he filed his application within one year of that decision. Jose couldn’t rely on Taylor, since it was a statutory interpretation case and not a constitutional one, and he had already missed the boat by four years to rely on Davis. Or could he?

The Eleventh Circuit amazingly granted him permission to file his § 2255 motion in the district court, but also said it would likely fail because he was well beyond the one-year time limit to file the motion. Accordingly, the government pushed the time limit, but the district court didn’t go along. Here’s the surprising decision from Judge Bucklew in Tampa:

“Petitioner has established he is actually innocent of his conviction in Count Four because Count Three—attempted armed bank robbery—is the sole predicate ‘crime of violence’ for Count Four. An attempt to commit bank robbery, however, is not a crime of violence under § 924(c)’s elements clause and § 924(c)’s residual clause is constitutionally invalid. See Taylor, 142 S. Ct. at 2025-26; Davis, 139 S. Ct. at 2323-24. For these reasons, when section 2255(f)(3)’s one-year limitations period is measured from the date on which Davis was decided, Petitioner is excepted from the statute-of-limitations bar because he is actually innocent of Count Four.”

That’s right – the court found that he was actually innocent of his § 924(c) conviction and therefore he was exempt from the one-year time limit. Judge Bucklew granted Jose’s motion and ordered his immediate release.

This is huge because the Supreme Court recently killed the savings clause of § 2255 in Jones v. Hendrix, which courts had allowed for statutory interpretation cases that rendered someone actually innocent (like Taylor). The Supreme Court said if someone has already used up their one shot at § 2255 relief, they can’t use the savings clause to get another shot if they can’t meet the strict criteria for filing another § 2255 motion. You can thank Justice Clarence Thomas and the other conservative justices on the Court for that nonsense, which forces people to stay in prison and serve an illegal or unconstitutional sentence. It seems Judge Bucklew found a workaround for this.

I held off mentioning this case because I fully expected the government to appeal this outcome, and force Jose to return to prison and serve his unconstitutional 25-year sentence. They have until September 9, 2023, to file an appeal, and I’ll let you know if they do.

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