Hairston filed a motion to vacate his sentence under 28 USC 2255. The district court denied it. Later, after getting a state conviction vacated, he filed another 2255 motion to vacate. The district court ruled the second motion was successive under 2255(h) and dismissed. The panel reversed. It first held that by addressing the merits of the appeal, the government forfeited its rights under the appellate waiver in Hairston’s plea agreement. It then held that when a fact relied upon in support of a 2255 motion did not exist when an earlier motion was filed, the new motion is per se not successive under 2255(h) and the district court erred in ruling otherwise. The panel noted that it found the result consistent with the reasoning of similar 10th and 11th Circuit cases and consistent with 4th circuit precedent involving 2255 motions after new sentencing hearings.
Saafir appealed the denial of his motion to suppress a gun found in the car he was driving. The panel reversed, vacated his conviction and remanded for further proceedings. It held that because the officer falsely claimed he had probable cause to search the car and this claim directly induced Saafir to make incriminatory statements, the statements and the search were both unreasonable as officers may not use false claims of authority to circumvent the 4th Amendment.
Mungro appealed his mandatory minimum sentence arguing his North Carolina breaking or entering convictions were not “burglary” for career criminal purposes. The panel affirmed. Applying the categorical approach, it held that the North Carolina statute was generic burglary because the North Carolina Supreme Court has excluded consensual entry form its scope even when a later theft or crime occurs. Thus, only unlawful breaking or entering with intent to commit a crime violates the North Carolina statute which meets the generic definition of “burglary”.