Argued January 28, 2015
Appeal fro the United States District Court for the Western District of North Carolina, at Charlotte. (3:04-cr-00223-RJC-DCK-2; 3:08-cv-00219-RJC). Robert J. Conrad, Jr., District Judge.
REVERSED AND REMANDED.
Littlehale, III, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, Washington, D.C., for Appellant.
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
William Blaise Warren, Molissa H. Farber, Diana V. Valdivia, Nathaniel D. Cullerton, Washington, D.C., Alexandra R. Clark, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, New York, New York, for Appellant.
Anne M. Tompkins, United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
GREGORY, Circuit Judge:
Appellant Madison Duane McRae was convicted of four drug-related charges on September 14, 2005. After an unsuccessful appeal and a pro se attempt to have his sentence vacated, corrected, or set aside under 28 U.S.C. § 2255, McRae filed a pro se motion with the district court entitled " Motion for Relief from Judgment 60(b)(1)(3)(6)." The district court dismissed the motion for lack of subject-matter jurisdiction, finding that it constituted an impermissible successive habeas petition rather than a proper Rule 60(b) motion. McRae appeals this judgment.
The threshold issue before us is whether we can review the district court's categorization of McRae's motion without first issuing a Certificate of Appealability (" COA" ) pursuant to 28 U.S.C. § 2253(c)(1)(B). We hold that recent Supreme Court jurisprudence has made clear that § 2253(c) does not apply in this particular situation. Because we find that McRae's motion constitutes a mixed Rule 60(b)/§ 2255 motion, we remand to the district court to afford McRae the opportunity to decide whether to abandon his improper claim or to proceed with a successive habeas petition.
In 2004, Immigration and Customs Enforcement (" ICE" ) Agent Blaine Crum began investigating McRae's co-defendant, Rodney Green, after he became suspicious of drug trafficking activity. On August 21, 2004, Agent Crum learned that Green and McRae had traveled to Jamaica, as had Green's connection Andrea Spears. Two other women, Atonia Bailey and Latia Harris, had flown to Jamaica as well. Although the travelers flew out of two different airports (Green and McRae from one and Spears, Harris, and Bailey from the other), all of their tickets had been purchased using cash at the Columbus, Ohio airport.
When Spears, Harris, and Bailey returned from Jamaica they were questioned at the Charlotte Douglas International Airport by customs agents, who seized cocaine and marijuana from Harris and Bailey. McRae and Green were pulled aside by customs agents at the Memphis International Airport for secondary examinations; Agent Crum sat in on their interviews.
After the interviews, Agent Crum called the Charlotte airport and learned that Bailey and Harris had been transporting controlled substances. Bailey had also identified McRae using a photograph. Based on this information, Agent Crum arrested McRae and Green. He obtained a search warrant for, among other things, the information in McRae's cell phone, and retrieved McRae's text messages, list of contacts, and record of recent calls. Agent Crum learned that the number labeled " Tnia" was Bailey's, and that McRae and Green had contacted each other just before leaving for Jamaica.
In February 2005, McRae was charged with four drug-related offenses. At the ensuing trial, Green, Bailey, Harris, and Spears testified against McRae. According to Green, he began distributing cocaine to McRae in 2004 and later agreed to help McRae import cocaine from Jamaica. Green testified that, after he and McRae successfully imported a kilogram of cocaine in August 2004, Green and McRae arranged for Spears, Harris, and Bailey to travel to Jamaica. McRae purchased everyone's tickets, and Green bought 1.5 kilograms of cocaine while in Jamaica. Green also gave McRae Ace bandages and duct tape for strapping the cocaine onto Bailey and two smaller packages for Harris and Spears to insert into their vaginas.
According to Bailey, in mid-August 2004 McRae offered her $500 to go to Jamaica and " bring something back." J.A. 182. After initially agreeing Bailey changed her mind, but McRae said since they already had the tickets they could still go to Jamaica and " kick it." J.A. 183-84. Bailey testified that when she got out of the shower on their last morning in Jamaica her ticket and birth certificate were missing. McRae told her ...