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Media Alerts - Phillips v. U.S. - Sixth Circuit
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February 25, 2014
  Phillips v. U.S. - Sixth Circuit
Headline: To invoke an equitable exception to the statute of limitations for filing a motion to vacate, a defendant must identify a binding intervening change of law.

Area of Law: Criminal Procedure - "Actual Innocence" Exception

Issue Presented: Can a defendant use an intervening decision from another circuit - or an intervening Supreme Court decision addressing the elements of a different criminal statute - to support an equitable-exception argument for actual innocence?

Brief Summary: Gregory Phillips was convicted of engaging in illicit sexual acts with a male minor in a foreign place. After the statute of limitations had run, Phillips filed a motion to vacate judgment, arguing that he was actually innocent because his travel ended when he moved to Thailand, which occurred two years before the statute was enacted. The Sixth Circuit held that Phillips failed to identify any binding intervening precedent that demonstrated a change in the law that would establish "that he now stands convicted of a crime that the law does not deem criminal." Therefore, the Sixth Circuit reaffirmed the district court's decision denying Phillips's motion to vacate judgment.

Significance: This case demonstrates the Sixth Circuit's unwillingness to extend the actual-innocence exception unless there is a "fundamental miscarriage of justice."

Extended Summary: In 2001, after serving 36 months' probation for "taking indecent liberties with a child," Gregory Phillips moved to Thailand because he was prohibited from seeking employment as a teacher in the United States. While in Thailand, Phillips engaged in sexual conduct with a minor male. In 2003, Title 18 U.S.C. § 2423 was enacted to protect children; this section makes it illegal to travel to a foreign place and engage in illicit sexual conduct.

In 2005, Phillips pleaded guilty to "engaging in illicit sexual conduct in foreign places" and was sentenced to 37 months' imprisonment and a life term of supervised release. In 2008, just days before serving a second prison term for violating his supervised release, Phillips filed a motion to vacate his 2005 conviction, arguing that § 2423(c) applied only to individuals who both traveled in foreign commerce and engaged in illicit sexual acts after the statute was enacted.

Although Phillips filed his motion after the statute of limitations had expired, he argued that he was entitled to relief because he did not discover grounds for his motion until the Ninth Circuit decided United States v. Jackson, 480 F.3d 1014 (9th Cir. 2007). Because the Jackson court held that the "travel" element of § 2423 must occur after the statute was enacted, Phillips argued that he was actually innocent because his "travel" ended when he moved to Thailand, which occurred two years before the statute was enacted. While serving his second prison term, Phillips filed a supplemental memorandum of law in support of his 2008 motion to vacate, which had not yet been ruled on by the district court. In his supplemental memorandum, Phillips argued that Carr v. United States, 130 S. Ct. 2229 (2010) indicated an additional change in the law, which further established his "actual innocence."

The district court declined to address the timeliness of Phillips's motion and, instead, denied Phillips's motion to vacate on statutory-interpretation grounds; Phillips appealed. The Sixth Circuit found that the timeliness issue was dispositive of Phillips's claims and affirmed the district court on this alternate basis.

The Sixth Circuit explained that the heart of Phillips's argument was "that an equitable exception should be applied to 'bypass the statutory bar' . . . because an intervening change in the law rendered him actually innocent." The Sixth Circuit refused to accept his argument because Phillips failed to show any binding precedent that demonstrated that he "now stands convicted of a crime that the law does not deem criminal." The Sixth Circuit also found that Phillips's reliance on Carr was misplaced because Carr interpreted the substantive elements of a different criminal statute. Without binding precedent interpreting the scope of "travels," Phillips failed to meet the requirements of the actual-innocence exception to his untimely petition. Therefore, the Sixth Circuit affirmed the district court's decision denying Phillips's motion to vacate judgment because Phillips's petition remained untimely.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/13a0321p-06.pdf

Panel: Rogers and Kethledge, Circuit Judges; and Borman, District Judge (sitting by designation)

Argument: June 21, 2013

Date of Issued Opinion: November 4, 2013

Docket Number: 11-6249

Decided: November 4, 2013

Case Alert Author: Theodora Eisenhut

Counsel: ARGUED: Hallie H. McFadden, Signal Mountain, Tennessee, for Appellant. Debra A. Breneman, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Hallie H. McFadden, Signal Mountain, Tennessee, for Appellant. Debra A. Breneman, Charles E. Atchley, Jr., UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

Author of Opinion: District Judge Borman

Case Alert Circuit Supervisor: Professor Tammy Asher

    Posted By: Mark Cooney @ 02/25/2014 03:28 PM     6th Circuit  

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