        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206                   2     Wiegand v. United States                      No. 02-1740
     ELECTRONIC CITATION: 2004 FED App. 0269A (6th Cir.)
                 File Name: 04a0269a.06                           Court’s decision in Jones v. United States, 529 U.S. 848
                                                                  (2000)—decided after Wiegand’s conviction—established a
                                                                  new AEDPA limitations period.
UNITED STATES COURT OF APPEALS
                                                                                                  I
                FOR THE SIXTH CIRCUIT
                  _________________                                  A federal jury found Wiegand guilty of several offenses,
                                                                  including arson. We affirmed his conviction on direct appeal.
 RICHARD LEE WIEGAND ,           X                                United States v. Wiegand, No. 93-1735, 1994 WL 714347, at
          Petitioner-Appellant, -                                 *1 (6th Cir. Dec. 22, 1994) (unpublished). Several years
                                  -                               later, Wiegand moved to vacate his sentence under 28 U.S.C.
                                  -   No. 02-1740                 § 2255 on the ground that his arson conviction was not
            v.                    -                               supported by sufficient evidence in light of Jones. A
                                   >                              magistrate judge recommended the court deny his motion
                                  ,                               because the AEDPA statute of limitations barred his claims.
 UNITED STATES OF AMERICA , -
         Respondent-Appellee. -                                   After reviewing Wiegand’s objections, the district court
                                                                  adopted the magistrate’s report and recommendation. The
                                 N                                district court granted a certificate of appealability with respect
      Appeal from the United States District Court                to Wiegand’s challenge to his arson conviction. Another
     for the Western District of Michigan at Lansing              panel affirmed the district court’s decision, Wiegand v. United
  No. 00-00496—David W. McKeague, District Judge.                 States, 70 Fed. Appx. 312 (6th Cir. 2003), but granted
                                                                  Wiegand’s petition for rehearing.
           Decided and Filed: August 19, 2004
                                                                                                  II
 Before: DAUGHTREY, GIBBONS, and COOK, Circuit
                   Judges.                                          The issue certified for appeal is whether Wiegand’s
                                                                  challenge to his arson conviction is barred by the AEDPA’s
                 ______________________                           one-year statute of limitations. Wiegand and the United
                                                                  States agree the AEDPA limitations period does not bar his
                  AMENDED OPINION                                 motion.
                 ______________________
                                                                    Section 2255 authorizes a federal prisoner to move the
  COOK, Circuit Judge. Richard Wiegand appeals the                district court to vacate his sentence. 28 U.S.C. § 2255 ¶ 1.
district court’s dismissal of his motion to vacate his sentence   The AEDPA established a one-year limitations period for
under 28 U.S.C. § 2255. The district court decided Wiegand        § 2255 motions, generally running from “the date on which
failed to file his motion within the Antiterrorism and            the judgment of conviction becomes final.” § 2255 ¶ 6(1).
Effective Death Penalty Act of 1996 (“AEDPA”) limitations         But the AEDPA established alternative limitations periods,
period. We reverse the district court’s decision and remand       including one for new rights the Supreme Court recognizes
for the district court to determine whether the Supreme           after the prisoner’s conviction becomes final:

                              1
No. 02-1740                   Wiegand v. United States       3    4     Wiegand v. United States                     No. 02-1740

  A 1-year period of limitation shall apply to a motion           signifies “active employment.” Jones, 529 U.S. at 855 (citing
  under this section. The limitation period shall run from        Bailey, 516 U.S. at 143, 145).
  the latest of —
                                                                    When we considered whether Bailey applied retroactively,
    ...                                                           we canvassed the circuits and identified four different
                                                                  retroactivity approaches: (1) only the Supreme Court can
    (3) the date on which the right asserted was initially        make the retroactivity decision; (2) a circuit court can make
  recognized by the Supreme Court, if that right has been         the retroactivity decision; (3) any inferior federal court can
  newly recognized by the Supreme Court and made                  make the retroactivity decision; and (4) not deciding the issue
  retroactively applicable to cases on collateral review;         because the defendant moved to vacate within one year of
  ....                                                            Bousley v. United States, 523 U.S. 614 (1998). Pryor v.
                                                                  United States, 278 F.3d 612, 615-16 (6th Cir. 2002). We
28 U.S.C. § 2255 ¶ 6(3).                                          adopted the fourth approach and declined to decide whether
                                                                  a court other than the Supreme Court could make the
  Wiegand claims—and the United States agrees—that his            retroactivity decision because of the unique circumstances
motion was timely under § 2255 ¶ 6(3) because he filed it         involved in that case. Confronted with this question again
within one year of the Supreme Court’s decision in Jones.         here, we decide that any federal court can make the
Wiegand can avail himself of ¶ 6(3) if Jones created a right      retroactivity decision, the third Pryor alternative.
that has been newly “recognized by the Supreme Court and
made retroactively applicable to cases on collateral review.”        The language of ¶ 6(3) belies the conclusion that only the
§ 2255 ¶ 6(3). The district court concluded that ¶ 6(3) did not   Supreme Court could decide retroactivity. As numerous
apply because Jones had not been “made retroactively              courts have noted, if Congress intended that result, then it
applicable to cases on collateral review” and that it could not   would have utilized the same language it used in § 2255
decide Jones applied retroactively, leaving that decision to      ¶ 8(2). The second and third Pryor positions recognize that
this court or the Supreme Court. We disagree with the district    a court other than the Supreme Court can decide retroactivity.
court’s conclusion that it could not decide whether Jones         The difference between these positions is whether a district
applies retroactively and we remand to the district court to      court can decide retroactivity or whether only a circuit court
make this decision.                                               can make that decision. A number of circuits have considered
                                                                  this question since we decided Pryor.
                              III
                                                                    The Third Circuit decided that either a district court or
  Jones restricted the scope of the federal arson statute,        circuit court can make the retroactivity decision. United
decriminalizing conduct that courts previously viewed as          States v. Swinton, 333 F.3d 481, 486 (3d Cir. 2003).
within the statute’s reach. Jones parallels the Supreme           Permitting a district court or circuit court to make the decision
Court’s decision in Bailey v. United States, 516 U.S. 137, 143    “may be essential to put the question before the Supreme
(1995) (holding that a conviction for using a firearm in          Court for final resolution.” Id. at 486 (citing Ashley v. United
relation to a drug offense requires evidence to show the          States, 266 F.3d 671, 673 (7th Cir. 2001)). The Swinton court
defendant’s active employment of the firearm). In fact, Jones     “conclude[d] - and the parties agree[d] - that the statute of
relied on Bailey for its conclusion that “use” in the statute     limitations provision of § 2255 allows district courts and
No. 02-1740                    Wiegand v. United States        5

courts of appeals to make retroactivity decisions.” 333 F.3d
at 487. The Eleventh Circuit reached the same conclusion
earlier this year, recognizing that “every circuit to consider
this issue has held that a court other than the Supreme Court
can make the retroactivity decision for purposes of § 2255
[¶6](3).” Dodd v. United States, 365 F.3d 1273, 1278 (11th
Cir. 2004) (citing decisions from the Third, Fifth, Seventh,
and Eleventh Circuits and ultimately concluding that the
limitations period began to run on the date of the Supreme
Court decision even though it recognized a district court
could decide the retroactivity question).
                               IV
   The district court here should decide retroactivity in the
first instance. If the district court finds Wiegand filed timely,
then it can address the merits of his claim. This procedure
will produce a more efficient resolution of retroactivity
issues; committing the timeliness decision to the district court
rather than the circuit court avoids a second round of
proceedings on remand to consider the merits of the
petitioner’s claim. We thus reverse the district court’s
judgment and remand for the district court to consider
whether Jones applies retroactively. If the district court
decides Jones applies retroactively, it should consider the
merits of Wiegand’s claim and any procedural defenses the
United States raises.
