                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-6544


UNITED STATES OF AMERICA,

                     Plaintiff − Appellee,

              v.

IRVING BENNERMAN,

                     Defendant – Appellant.


Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Terrence W. Boyle, District Judge. (7:13-cr-00091-BO-1)


Argued: May 9, 2019                                          Decided: September 5, 2019


Before DIAZ, FLOYD, and RICHARDSON, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion. Judge Richardson wrote a
separate opinion concurring in the judgment.


ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Banumathi Rangarajan, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
Louis C. Allen, III, Acting Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. John Stuart Bruce,
United States Attorney, Jennifer P. May-Parker, First Assistant United States Attorney,
Barbara D. Kocher, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                            2
PER CURIAM:

       Irving Bennerman appeals the district court’s dismissal of his motion under 28

U.S.C. § 2255. The motion challenges Bennerman’s federal prison sentence on the ground

that he no longer has three violent felony convictions under the Armed Career Criminal

Act (the “ACCA”). Because the district court erred by dismissing Bennerman’s § 2255

motion based on the law of the case doctrine and Bennerman has satisfied § 2255’s

procedural requirements, we vacate the judgment and remand for the district court to

address the merits of Bennerman’s motion.



                                             I.

       In 2014, Bennerman pleaded guilty to possession of a firearm by a felon, in violation

of 18 U.S.C. § 922(g)(1). The district court sentenced him to seventeen and a half years in

prison under the ACCA because he had three previous violent felony convictions. 1 18

U.S.C. § 924(e).     The three ACCA predicate offenses identified in Bennerman’s

presentence investigation report (“PSR”) are (1) Connecticut first-degree robbery, (2)

Connecticut second-degree robbery, and (3) North Carolina discharging a weapon into

occupied property. The district court adopted the PSR’s findings, and didn’t further specify

which predicate offenses it relied on or which clause(s) of the ACCA’s violent felony

definition covered each predicate offense.


       1
          The statutory maximum for violating 18 U.S.C. § 922(g) is normally ten years.
The ACCA designation raised the penalty to a minimum of fifteen years and a maximum
of life in prison. 18 U.S.C. § 924(e).

                                             3
       On direct appeal, Bennerman argued that Connecticut first-degree robbery is too

broad to qualify as a violent felony (and that his ACCA designation is therefore erroneous)

because Connecticut’s statute can apply to accessories after the fact who don’t participate

in the crime itself. We rejected his argument in an unpublished opinion, concluding that

first-degree robbery “requires either the defendant or another participant to display or

threaten the use of a firearm,” and that “[a]n accessory after the fact is not a participant in

the crime.” United States v. Bennerman, 585 F. App’x 127, 128 (4th Cir. 2014). Thus, we

held the offense is a violent felony under the ACCA’s force clause.

       Two years later, Bennerman filed a § 2255 motion challenging his ACCA

designation. He claimed that Connecticut first- and second-degree robbery don’t qualify

as violent felonies under the force clause, and can no longer qualify under the ACCA’s

residual clause because it was invalidated in Johnson v. United States (Johnson II), 135 S.

Ct. 2551 (2015). In his response to the government’s motion to dismiss, Bennerman also

argued that his convictions for Connecticut second-degree assault and North Carolina

discharging a weapon into occupied property are not violent felonies. The district court

dismissed Bennerman’s motion, concluding that his argument was barred by the law of the

case. It reasoned that our 2014 decision on direct appeal foreclosed further consideration

of whether Connecticut robbery satisfies the force clause. But the district court granted a

certificate of appealability, noting that “whether Connecticut robbery is a proper ACCA

predicate after [Johnson II] is an unsettled question.” J.A. 54–55.

       This appeal followed.



                                              4
                                             II.

       The government first argues that Bennerman’s motion is barred on procedural

grounds by § 2255’s statute of limitations, the law of the case (as the district court held),

and procedural default. We consider and reject each of these arguments.

                                             A.

       The government contends that Bennerman’s motion is barred by § 2255’s one-year

statute of limitations. This statutory period typically runs from the date the challenged

conviction becomes final. 28 U.S.C. § 2255(f)(1). However, if the Supreme Court

recognizes a new right and makes it retroactively applicable on collateral review, the period

runs from “the date on which the right asserted was initially recognized by the Supreme

Court.” Id. § 2255(f)(3).

       Bennerman’s conviction became final when the Supreme Court denied certiorari in

his direct appeal on April 20, 2015. Bennerman v. United States, 135 S. Ct. 1847 (2015);

see United States v. Segers, 271 F.3d 181, 186 (4th Cir. 2001) (denial of certiorari petition

constitutes a final judgment). He filed his 2255 motion more than one year later (on June

1, 2016), but within a year of the Supreme Court’s decision striking down the ACCA’s

residual clause in Johnson II. 2 Therefore, whether Bennerman’s motion is time barred

depends on whether it asserts a right first recognized in Johnson II.




       2
        The Court held that Johnson II is retroactively applicable on collateral review in
Welch v. United States, 136 S. Ct. 1257, 1268 (2016).

                                             5
       The government says Bennerman’s 2255 motion is foreclosed because Johnson II

concerned the ACCA’s residual clause, whereas the motion challenges our ruling that

Connecticut robbery falls under the ACCA’s force clause. Bennerman responds that his

motion nonetheless sufficiently invokes Johnson II because his sentence “may have been

predicated” on the residual clause. United States v. Winston, 850 F.3d 677, 682 (4th Cir.

2017). We agree with Bennerman.

       In Winston, we held that “when an inmate’s sentence may have been predicated on

application of the now-void residual clause and, therefore, may be an unlawful sentence

under the holding in Johnson II, the inmate has shown that he ‘relies on’ a new rule of

constitutional law.” Id. (citation omitted). We declined to require that inmates prove their

individual sentences were in fact based on the residual clause, as opposed to the enumerated

clause or the force clause, for two primary reasons.

       First, where a claim depends on the interplay between Johnson II’s invalidation of

the residual clause and some other principle of law (such as an interpretation of the force

clause), the claim relies on both principles in that it would fail if either clause defeated it.

See id. at 682 n.4. Second, permitting review only where the sentencing court said it was

relying on the residual clause would “penalize a movant for a court’s discretionary choice

not to specify” a clause. Id. at 682. Such a result would be arbitrary because sentencing

courts aren’t required to specify which clause an ACCA sentence is based on, and before

Johnson II courts had little reason to think the choice would matter. We therefore held in

Winston that a claim invokes Johnson II whenever the challenged sentence could have been



                                               6
based on the residual clause, “regardless of any non-essential conclusions a court may or

may not have articulated on the record in determining the defendant’s sentence.” Id.

       Although Winston addressed whether an inmate sufficiently relied on Johnson II for

purposes of bringing a successive petition under 28 U.S.C. § 2244(b)(2)(A), its holding

applies equally to the question of whether an inmate has invoked Johnson II for purposes

of § 2255’s statute of limitations. We implied as much by observing that Winston’s petition

satisfied the statute of limitations because it was filed “within one year of the Supreme

Court’s decision in Johnson II.” 850 F.3d at 680 n.2. Moreover, a uniform interpretation

of sections 2244(b)(2)(A) and 2255(f)(3) is supported by the text, structure, and purpose

of the statutes. The two provisions use substantially similar language to describe the same

triggering event—a development in the law that supports the inmate’s claim for relief and

removes an otherwise applicable procedural barrier. Compare 28 U.S.C. § 2244(b)(2)(A)

(“the claim relies on a new rule of constitutional law”), with id. § 2255(f)(3) (“the right

asserted was initially recognized”). Thus, we apply Winston in this case. 3

       Bennerman’s 2255 motion satisfies Winston’s criterion for invoking Johnson II

because the ACCA’s residual clause could have supported his sentence. The district court

didn’t specify whether it was relying on the force clause or the residual clause. And

although we stated on direct appeal that Connecticut first-degree robbery satisfies the force


       3
         District courts in this circuit have applied Winston’s holding to § 2255’s statute of
limitations, consistent with the approach we take here. See, e.g., United States v. Bell, No.
4:12-CR-68-FL-1, 2018 WL 890072, at *2 (E.D.N.C. Feb. 14, 2018); United States v.
Johnson, No. 3:02-cr-00015, 2018 WL 834950, at *3 (W.D. Va. Feb. 12, 2018); United
States v. Martin, No. 4:06cr00049-3, 2017 WL 2601896, at *2–3 (W.D. Va. June 15, 2017).

                                              7
clause, see Bennerman, 585 F. App’x at 128, we could have easily reached the same result

by invoking the residual clause—a broad catchall provision that had been held to cover

various robbery offenses. See, e.g., United States v. Mitchell, 743 F.3d 1054, 1062–63 (6th

Cir. 2014) (collecting cases and holding that Tennessee robbery satisfied the residual

clause). Our invocation of the force clause was thus the kind of “non-essential conclusion”

that we deemed immaterial in Winston.

       A potential ground for distinguishing Winston merits brief discussion. In Winston,

the district court didn’t specify whether it was relying on the residual clause or the force

clause to justify its sentence. By contrast, we expressly specified in Bennerman’s direct

appeal that his Connecticut first-degree robbery conviction qualified as an ACCA predicate

under the force clause. But this is a distinction without a difference. Our rationale in

Winston applies whether a court makes the nonessential decision not to specify a clause or

the nonessential decision to specify a clause other than the residual clause. 4

       Bennerman’s case illustrates our point. At the time of his direct appeal, nothing

turned on our decision to invoke the force clause. The issue of which ACCA clause(s)

covered Connecticut robbery hadn’t been briefed, and we didn’t need to reach that issue to

affirm. Not surprisingly, then, we offered little analysis in support of our statement




       4
        District courts in this circuit have similarly recognized that this distinction is
unimportant. They have uniformly applied Winston to cases where the sentencing court
expressly invoked the force clause or the enumerated clause, so long as the residual clause
could have supported the sentence. See, e.g., Cade v. United States, 276 F. Supp. 3d 502,
506–08 (D.S.C. 2017).

                                              8
specifying the force clause.     To now use that statement as the basis for denying

Bennerman’s 2255 motion would fly in the face of our reasoning in Winston.

       We therefore reject the government’s argument that Bennerman’s motion is time

barred.

                                             B.

       Next, the government urges us to affirm the district court’s holding that

Bennerman’s 2255 motion is foreclosed by our decision on direct appeal, which established

the law of the case. We decline to do so.

       The law of the case doctrine provides that “when a court decides upon a rule of law,

that decision should continue to govern the same issues in subsequent stages in the same

case.” Carlson v. Bos. Sci. Corp., 856 F.3d 320, 325 (4th Cir. 2017) (citation omitted). It

has been applied to serve finality interests in the habeas context, where the normal

preclusion principles of res judicata and collateral estoppel don’t apply. Peoples v. United

States, 403 F.3d 844, 847 (7th Cir. 2005).

       Importantly however, the law of the case doctrine is more flexible than these other

preclusion doctrines. Peoples, 403 F.3d at 847; Hill v. BASF Wyandotte Corp., 696 F.2d

287, 290 n.3 (4th Cir. 1982) (stating that the law of the case doctrine “is not a matter of

rigid legal rule, but more a matter of proper judicial administration”). We have thus

recognized exceptions to the doctrine where new evidence becomes available, the

controlling law changes, or the prior decision was clearly wrong.         United States v.

Aramony, 166 F.3d 655, 661 (4th Cir. 1999). And the law of the case applies only to issues

that have actually been decided. Quern v. Jordan, 440 U.S. 332, 347 n.18 (1979).

                                             9
       Although we did decide on direct appeal that Connecticut first-degree robbery

satisfies the force clause, we are persuaded that the issue should be revisited. For one thing,

our decision was unpublished, provided little elaboration, and addressed an issue that

wasn’t necessary to our disposition and hadn’t been briefed. More importantly, intervening

changes in the law have given our decision a significance that we could not have predicted

at the time. See United States v. Redrick, 841 F.3d 478, 480 (D.C. Cir. 2016) (“At the time

of [petitioner’s] plea agreement, it is fair to say that no one—the government, the judge, or

the appellant—could reasonably have anticipated [Johnson II].”).

       As we have explained, our decision to specify the force clause as the basis for our

finding that Connecticut robbery is a crime of violence was “nonessential.” To treat that

decision as binding now would be arbitrary for the reasons identified in Winston.

                                              C.

       Finally, we reject the government’s alternative argument that Bennerman’s force

clause argument is subject to procedural default because he failed to raise it on direct

appeal. True, Bennerman didn’t argue before that Connecticut robbery committed by a

principal fails to satisfy the force clause. However, this doesn’t prevent him from doing

so now, because his argument (which depends on a favorable result on both the force clause

and the residual clause) wasn’t reasonably available before the change in law wrought by

Johnson II. Our sister circuits have entertained procedurally defaulted Johnson II claims

due to their previous unavailability, and we conclude that this approach is applicable here.

See Lassend v. United States, 898 F.3d 115, 122–23 (1st Cir. 2018); Cross v. United States,

892 F.3d 288, 294–96 (7th Cir. 2018); United States v. Snyder, 871 F.3d 1122, 1127 (10th

                                              10
Cir. 2017). Moreover, procedural default is an affirmative defense that the government

failed to raise before the district court and has therefore waived. See United States v.

Pregent, 190 F.3d 279, 284 n.5 (4th Cir. 1999); United States v. Barron, 172 F.3d 1153,

1156–57 (9th Cir. 1999).

       In sum, Bennerman’s 2255 motion raises a new, previously unavailable claim under

Johnson II. For the reasons we identified in Winston, this is sufficient to clear the statute

of limitations bar and related procedural hurdles, including the law of the case and

procedural default.



                                            III.

       The district court erred by dismissing Bennerman’s § 2255 motion based on the law

of the case doctrine. Moreover, as we have discussed, Bennerman has successfully

overcome § 2255’s procedural threshold requirements. Given the posture of this case, we

vacate and remand for the district court to address Bennerman’s claims in the first instance.



                                                             VACATED AND REMANDED




                                             11
RICHARDSON, Circuit Judge, concurring in the judgment:

       I agree with my good colleagues that the district court erred in dismissing

Bennerman’s § 2255 motion based on law of the case. That doctrine does not fully preclude

consideration of Bennerman’s claim that he should not have been sentenced under the

Armed Career Criminal Act. But my rationale differs from the Majority’s.

       Connecticut defines robbery in the first and second degree by starting with the

definition of robbery in the third degree and then adding aggravating circumstances. See

Conn. Gen. Stat. §§ 53a-133 to -135. These aggravating circumstances differ for first-

degree and second-degree robbery. See id. After Bennerman’s conviction, we held on

direct appeal that Bennerman’s first-degree robbery conviction was a violent felony under

the Armed Career Criminal Act’s force clause. We did so relying on an aggravating

circumstance specific to first-degree robbery, namely the display or threatened use of a

firearm specifically (as opposed to a deadly weapon more generally, which would support

a conviction for second-degree robbery). See United States v. Bennerman, 585 F. App’x

127, 128 (4th Cir. 2014).

       In holding that first-degree robbery satisfied the force clause, we did not address

second-degree robbery (or third-degree robbery). 1          Because Bennerman’s present

challenge to his sentence is predicated, in part, on the claim that his conviction for second-

degree robbery is not a crime of violence—a question unanswered in the prior appeal—it


       1
        Indeed, Bennerman conceded on direct appeal that two of his other convictions—
Connecticut second-degree robbery and North Carolina discharge of a weapon into
occupied property—qualified as predicate offenses. Bennerman, 585 F. App’x at 127.

                                             12
is not barred by the law of the case. See Christianson v. Colt Indus. Operating Corp., 486

U.S. 800, 817 (1988) (explaining that “the law of the case turns on whether a court

previously decided upon a rule of law” (cleaned up)).

       So even though we differ on why, I concur in the majority’s judgment vacating and

remanding Bennerman’s case. As for the alternative procedural arguments (statute of

limitations and procedural default), I would not reach out to decide those questions. The

district court would be just as well equipped as we are to address those issues in the first

instance on remand. 2




       2
          In his response to the government’s motion to dismiss, Bennerman also argued
that his North Carolina conviction for discharging a weapon into occupied property is not
a violent felony. Because Bennerman did not raise this argument in his initial § 2255
motion and did not press it on appeal (it was not included in the certificate of appealability),
the district court should determine whether it is forfeited.

                                              13
