                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-8096


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ROBERT EARL HAIRSTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.        Richard L.
Voorhees, District Judge. (5:99-cr-00011-RLV-3; 5:12-cv-00021-
RLV)


Argued:   May 14, 2014                    Decided:   June 11, 2014


Before GREGORY and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Reversed and remanded by published opinion. Senior Judge Davis
wrote the opinion, in which Judge Gregory and Judge Thacker
joined.


ARGUED:    Stephanie    D.  Taylor,    JONES   DAY,    Pittsburgh,
Pennsylvania, for Appellant.    William Michael Miller, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.     ON BRIEF: Lawrence D. Rosenberg, JONES DAY,
Washington, D.C., for Appellant.       Anne M. Tompkins, United
States   Attorney,   OFFICE  OF   THE   UNITED  STATES   ATTORNEY,
Charlotte, North Carolina, for Appellee.
DAVIS, Senior Circuit Judge:

      Appellant Robert Earl Hairston pled guilty to conspiracy to

possess    with        intent     to   distribute         narcotics         in    2003.       He   was

sentenced to 324 months based on a Sentencing Guidelines range

of 324-405 months, taking into account his category IV criminal

history.     In     2012,        after   a    state       court     vacated        one        of   his

convictions which contributed to his criminal history category,

Hairston filed a motion pursuant to 28 U.S.C. § 2255, not his

first one, arguing that the vacatur lowered his criminal history

to   category       III     resulting        in    a     lower    Guidelines           range.      The

district          court         dismissed         the      claim       under           28      U.S.C.

§§ 2244(b)(3)(a) and 2255(h), holding that Hairston did not meet

the requirements of a permissible second or successive motion to

vacate.      We    hold     that       Hairston’s         motion       is    not       successive;

accordingly, we reverse and remand.

                                                  I

      On February 21, 2003, Hairston pled guilty to conspiracy to

possess with intent to distribute cocaine, cocaine base, and

marijuana.        In      the     presentence           report     (PSR),        the        Probation

Officer recommended an adjusted offense level of 38, accounting

for Hairston’s leadership role and acceptance of responsibility.

The Probation Officer found a criminal history category of IV

based   on    five      criminal       history         points    and    an       adjustment        for

committing        certain        offenses     while       on     probation.        One        of   the

                                                  2
convictions detailed in Hairston’s history was from November 30,

1991,       when   Hairston    was     convicted     of     the    offense   of     “No

Operator’s License” in Newton, North Carolina, and sentenced to

six months suspended imprisonment and three years probation. The

Probation Officer recommended a final Guidelines range of 324-

405 months.

       Hairston objected to the PSR’s inclusion of the criminal

history point on the basis of the North Carolina No Operator’s

License conviction, denying that he was in North Carolina at the

time       specified.   At    the    sentencing     hearing,      however,   defense

counsel essentially conceded that Hairston could not disprove

the    conviction       as   detailed    in   the    PSR.    The    district      court

adopted the PSR’s recommendations and pronounced a sentence of

324 months, which was subsequently reduced to 210 months. See

infra n.2.

       Within a year of his sentencing, Hairston filed a § 2255

motion to vacate his sentence, which the district court denied

shortly thereafter. 1 Also that year, Hairston filed a motion in

North Carolina state court, seeking to vacate the No Operator’s


       1
       Hairston grounded his first § 2255 motion on alleged
violations of his Fifth and Sixth Amendment rights, alleging
that:   the  police   had   coercively   obtained   coconspirator
statements;   the    prosecution   had    withheld    exculpatory
information;  and   his   trial  counsel   was   constitutionally
ineffective.



                                          3
License    conviction.       Though    initially          unsuccessful,     Hairston

continued to file motions in state court seeking vacatur. Eight

years later, Hairston’s efforts met with success and on August

17,   2011,   the    state   court    vacated       his   No   Operator’s   License

conviction based on a finding that he was denied assistance of

counsel.

      Hairston then returned to federal court, filing his current

§ 2255     motion.    He     sought   a       resentencing;      without    the    No

Operator’s    License      conviction,        his   criminal    history    would   be

lowered to category III resulting in a Guidelines range of 188-

235 months. 2 On October 10, 2012, the district court dismissed

Hairston’s motion as an unauthorized second or successive motion

pursuant to 28 U.S.C. § 2244(b)(3)(A).

      Hairston timely moved for a Certificate of Appealability

(COA) from this Court. On May 9, 2013, we granted the COA on the

following issue: “whether Hairston’s numerically second § 2255

motion is a ‘second or successive’ motion for purposes of 28

U.S.C. § 2255(h), where the basis for his claim did not arise


      2
        Applying this requested change to his initial sentence
would have reduced his Guidelines range to 292-365 months. In
fact, as a result of two intervening retroactive amendments to
the   Sentencing  Guidelines  for  crack  cocaine  convictions,
Hairston’s base offense level is now 34 rather than 38, and the
district court has previously reduced Hairston’s sentence from
324 months to 210 months, within the now applicable Guidelines
range.



                                          4
until after the district court denied his first § 2255 motion.”

J.A. 147. Thereafter, we appointed counsel to represent Hairston

and calendared the case for argument.

                                           II

      As a preliminary matter, the Government argues that in his

plea agreement Hairston waived his right to seek relief under

§ 2255. But as Hairston points out, and we agree, the Government

has waived this waiver argument. See United States v. Metzger, 3

F.3d 756, 757-58 (4th Cir. 1993).

      It   is   long-settled        that   we     “limit   [our]    review      to   the

issues raised in the informal brief.” Loc. R. App. P. 34(b). We

have held that where a defendant has signed an appeal waiver,

the Government can utilize one of three options: it can “(1)

raise the appeal waiver issue . . . ; (2) assert that it is no

longer     bound   by    the   plea    agreement      because      the    defendant’s

appeal amounts to a breach of that agreement; or (3) decline to

rely on the appeal waiver and address the merits.” United States

v.   Poindexter,     492     F.3d   263,    271    (4th    Cir.    2007)      (internal

citations omitted). The Government chose the last option in this

case by failing to raise the issue of waiver in its informal

brief and instead addressing the merits; it is foreclosed from

changing tactics now.

      We   discern      no   legitimate     reason    to   decline       to   hold   the

Government to its forfeiture. After we granted a COA to consider

                                           5
the successive motion issue, we ordered the Government to file

its informal brief. Thereafter, the Government sought, and we

granted,      an    extension      of   time,       nunc    pro       tunc,   giving     the

Government an additional five weeks within which to file its

informal   brief.      The    Government         chose     not   to    invoke    the    plea

agreement’s        waiver    of   appeal     and     post-conviction          rights     and

instead argued only the merits of the issue on which we granted

a COA. Indeed, the Government urged in its informal brief that

we   decide    this    case       without    oral     argument.         It    would     be   a

perverse non-application of Local Rule 34(b), therefore, for us

to   entertain       the    Government’s          forfeited      argument       under    the

circumstances of this case and we decline to do so. 3

                                            III

      Hairston argues that the district court erred in dismissing

his § 2255 motion as a second or successive motion. We agree.

      When considering the denial of a § 2255 motion to vacate,

we review a district court’s legal conclusions de novo. United


      3
       Albeit in an unpublished opinion, see Jafari v. Old
Dominion Transit Mgmt. Co., 462 Fed. App’x 385, 389-90 (4th Cir.
Jan. 27, 2012), we have enforced Rule 34(b) under circumstances
substantially similar to those presented in this case. There,
the pro se appellant had filed an informal brief that failed to
make an argument as to one claim that had been dismissed by the
district court. He subsequently retained counsel who filed a
formal brief making the forfeited argument and we calendared the
case for oral argument. We enforced Rule 34(b) in that instance
just as we do here. Id. at 389-90.



                                             6
States v. Nicholson, 475 F.3d 241, 248 (4th Cir. 2007). This

Court’s review is limited to those issues for which we have

granted a Certificate of Appealability. Id. at 244; 28 U.S.C.

§ 2253(c)(2).

      The Antiterrorism and Effective Death Penalty Act of 1996

mandates that if a defendant has already filed one motion for

collateral relief to vacate, set aside, or correct a sentence, a

      second or successive motion must be certified as
      provided in section 2244 by a panel of the appropriate
      court of appeals to contain--

      (1) newly discovered evidence that, if proven and
      viewed in light of the evidence as a whole, would be
      sufficient to establish by clear and convincing
      evidence that no reasonable factfinder would have
      found the movant guilty of the offense; or

      (2) a new rule of constitutional law, made retroactive
      to cases on collateral review by the Supreme Court,
      that was previously unavailable.

28 U.S.C. § 2255(h).

      The district court held that because Hairston had failed to

get the requisite certification from this Court, his motion must

be   denied.    Hairston   argues   that   his   motion    should   not   be

considered within § 2255(h) at all, as it is not truly a “second

or   successive   petition.”   Other     circuits   have   considered     the

question of whether a motion is second or successive when the

grounds for challenging the movant’s sentence did not exist at

the time he filed his first motion to vacate, specifically in

the context of asking to reopen a federal sentence after the


                                     7
vacatur       of    a   state     conviction.          Both      the     Tenth       and    Eleventh

Circuits       have       held     that    such        motions          are    not     second     or

successive. In re Weathersby, 717 F.3d 1108, 1111 (10th Cir.

2013); Stewart v. United States, 646 F.3d 856, 863-65 (11th Cir.

2011).

       In Stewart, the movant filed a numerically second § 2255

motion    requesting           vacatur     of    his    career          offender      enhancement

after     a        Georgia       state     court       vacated          a     predicate        state

conviction. Stewart, 646 F.3d at 858. The court there began with

a discussion of Johnson v. United States, 544 U.S. 295, 302

(2005),       which      held     that    the     vacatur         of    a     state    conviction

constituted         a    new     fact,    restarting            the     one-year       statute    of

limitations on § 2255 motions. The Stewart court then pointed to

a     decision          from      the     Fifth        Circuit,             which     held      that

“‘[i]f . . . the purported defect did not arise, or the claim

did    not    ripen,       until     after       the    conclusion            of     the    previous

petition, the later petition based on that defect may be non-

successive.’”            646     F.3d     at     861       (quoting           Leal     Garcia     v.

Quarterman, 573 F.3d 214, 222 (5th Cir. 2009)). The Eleventh

Circuit rejected the Government’s argument that Stewart should

have     simply         waited     to     file       his        first       § 2255     motion     as

“untenable,”            stating     that        such       an     approach          would    “force

petitioners         like       Stewart    to     choose         between       claims       available

immediately—such           as    claims    alleging         ineffective             assistance    of

                                                 8
counsel—and those available only later—such as Johnson claims.”

Id. at 864. Accordingly, the court held that “because attempting

to raise his Johnson claim in his initial § 2255 petition would

have been an empty formality, Stewart was permitted to raise it

in a second, diligently pursued § 2255 motion.” Id. at 865.

       The Government urges us to reject Stewart and its cousin,

Weathersby, instead pointing to Unthank v. Jett, 549 F.3d 534,

535 (7th Cir. 2008). There, the Seventh Circuit held that even

though   the     vacatur       of    a    state       conviction          constituted      a   “new

fact”    under    Johnson,           it    was        still       insufficient       under      the

requirements of § 2255(h) for considering a second or successive

motion. Id. at 535. Unthank is inapposite, however; the court

there did not even consider the baseline argument that Unthank’s

motion should not be considered second or successive. Indeed,

subsequent      case     law    indicates             that    the     view   of     the    Seventh

Circuit is actually aligned with those of the Tenth and Eleventh

circuits. See United States v. Obeid, 707 F.3d 898, 903 (7th

Cir.    2013)    (“Seeing       no       reason       to     part    ways    with    our   sister

circuits, however, we join them in concluding that a petition or

motion based on a claim that did not become ripe any earlier

than    until    after    the       adjudication             of     the   petitioner’s         first

petition   or     motion       is    not    ‘second          or     successive’      within     the

meaning of Sections 2244 and 2255(h).”).



                                                  9
          In any event, we are persuaded by the reasoning of our

colleagues          in     the     Tenth      and       Eleventh      Circuits.         As    we    have

previously            recognized,         “it      is      settled       law     that    not       every

numerically second petition is a ‘second or successive’ petition

within the meaning of the AEDPA.” In re Williams, 444 F.3d 233,

235       (4th      Cir.      2006)       (§ 2254          case);     see       also    Panetti         v.

Quarterman,            551      U.S.      930,      942-47        (2007)        (holding      that       a

numerically second § 2254 habeas petition is not governed by the

strictures          of     § 2244(b)(2)          on     second      or    successive         petitions

where         the   claim         was   not     ripe       at   the      time     of    the    initial

petition). Indeed, we have allowed a numerically second § 2255

motion where the claim arose at a resentencing hearing afforded

to    a       movant     as   a    result     of      his    first       § 2255    motion.         In   re

Taylor,         171      F.3d      185,     187-88         (4th     Cir.       1999).    There,         we

acknowledged that “a claim which did not arise until after a

prior petition was filed” should not be “barred as ‘second or

successive.’” Id. at 187. The same principles apply here. 4




          4
       See also United States v. Buenrostro, 638 F.3d 720, 725
(9th Cir. 2011) (allowing a numerically second § 2255 motion as
“[p]risoners may file second-in-time petitions based on events
that do not occur until a first petition is concluded”); In re
Jones, 652 F.3d 603, 605 (6th Cir. 2010) (allowing a numerically
second § 2244 motion as “Jones’s ex post facto claim was unripe
when his initial petition was filed-the events giving rise to
the claim had not yet occurred”).



                                                      10
     In light of our own precedents, we find the reasoning of

Stewart and Weathersby compelling. We hold, therefore, that a

numerically second § 2255 motion should not be considered second

or successive pursuant to § 2255(h) where, as here, the facts

relied on by the movant seeking resentencing did not exist when

the numerically first motion was filed and adjudicated. Here,

Hairston’s claim was unripe at the time his numerically first

motion was adjudicated. Accordingly, in light of the subsequent

vacatur of his state No Operator’s License conviction, which

contributed     to   the    original     guidelines    calculation     of   his

federal sentence, his motion was not successive. 5

                                        IV

     For the reasons set forth, the judgment of the district

court    is   reversed     and   this   matter   is   remanded   for   further

proceedings consistent with this opinion.

                                                      REVERSED AND REMANDED




     5
        The Government seeks to throw up a number of procedural
barriers to our consideration of Hairston’s claim, arguing that
Hairston’s claim is not cognizable under § 2255; his claim is
procedurally defaulted; and Hairston failed to exercise due
diligence in seeking vacatur of his state conviction. These
issues fall well outside the COA issued in this case and without
expressing any view as to them, we leave it to the district
court to consider these questions in the first instance on
remand.



                                        11
