by Dale Chappell

After the case had been sitting in the courts for seven years, the U.S. District Court for the Western District of North Carolina granted relief under the “savings clause” of 28 U.S.C. § 2255, vacating a mandatory life sentence.

Ian Persaud filed his savings clause petition back in 2012, challenging his mandatory life sentence after some recent major changes in case law invalidated his prior convictions used to impose that sentence.

Over the next seven years, he made it through every level of the courts, even to the U.S. Supreme Court, but further changes in case law kept pushing Persaud’s petition to the side. Finally, he was granted relief.

In January 2003, the court was mandated by statute to sentence Persaud to life in prison without parole after a jury found him guilty of conspiracy to distribute cocaine and crack cocaine. This happened because the Government filed a notice under 21 U.S.C. § 851, relying on Persaud’s prior drug convictions to invoke the stiffer penalties under § 841. Persaud had two qualifying prior drug convictions that required the judge to impose a life sentence. That’s all it takes under § 851.

After losing on appeal, Persaud filed a § 2255 motion in 2005, arguing several ineffective assistance of counsel claims. That motion was dismissed, and the U.S. Court of Appeals for the Fourth Circuit refused to grant a certificate of appealability.

Then the case law changed regarding Persaud’s drug priors. In United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), the Court held that under North Carolina’s sentencing scheme, the sentence a “particular defendant” could have received is what matters, and not what any defendant could have received. This meant that because Persaud faced only up to eight months under North Carolina sentencing law; his several North Carolina drug priors were not felonies. Only prior drug felonies count for the § 851 penalty.

Persaud filed a savings clause petition (along with other requested remedies, which were all denied), and the court denied relief, ruling that the Fourth Circuit’s savings clause criteria allowed challenges to convictions, not sentences.

The court ruled Persaud’s petition was really a successive § 2255 motion, and the Fourth Circuit dismissed his subsequent appeal. Persaud then petitioned the Supreme Court for a writ of certiorari to the Fourth Circuit, and the Solicitor General conceded he was entitled to relief. The Supreme Court, without an opinion on the matter, remanded to the Fourth Circuit to consider the Government’s concessions.

Persaud’s petition made its way back to the district court, where the Government moved to stay the proceedings to wait on further developments in case law in the Fourth Circuit that could affect Persaud’s petition. The case in question was United States v. Surratt, 797 F.3d 240 (4th Cir. 2015), in which the petitioner filed a savings clause petition challenging his life sentence, just like Persaud, predicated on Simmons. Raymond Surratt lost but was granted a rehearing by the en banc court. However, that became moot because President Obama commuted Surratt’s sentence, and the Court dismissed his petition.

The second case the Government asked the district court to wait on was that of Gerald Wheeler who filed his savings clause petition challenging his § 851 sentence, which went to appeal, because it too was factually similar to Persaud’s case. On March 28, 2018, the Fourth Circuit granted Wheeler’s petition, which once again revised the savings clause criteria, this time to allow challenges to sentences as well as convictions. United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018). But the Government delayed relief for Persaud even further, filing for en banc rehearing in Wheeler’s case, which was denied, and then appealing to the Supreme Court. When the Supreme Court denied certiorari on March 18, 2019, in Wheeler’s case, the district court finally determined that Persaud’s case was “ripe” for a ruling.

Every circuit is different with respect to who qualifies under the savings clause. Currently in the Fourth Circuit, § 2255 is “inadequate or ineffective” as a remedy to allow resort to the savings clause by way of filing a § 2241 petition when (1) at the time of sentencing, circuit or Supreme Court case law established the legality of the sentence; (2) subsequent to the direct appeal and first § 2255 motion, that case law had changed and held to apply retroactively; (3) § 2255 cannot be used at all; and (4) due to this retroactive change, the sentence is now declared a fundamental defect.

Persaud met all the new criteria, the Court concluded, because his sentence was proper under case law at the time of sentencing, but since then, Simmons changed that. Further, Simmons was declared retroactively applicable by the Fourth Circuit. And Persaud could not use § 2255, even under the “second or successive provisions,” because Simmons was not a constitutional decision made retroactive by the Supreme Court.

Accordingly, these changes rendered Persaud’s life sentence under § 851 a “fundamental defect,” so the Court granted his petition. His life sentence was vacated, and his case set for resentencing. See: Persaud v. United States, 2019 U.S. Dist. LEXIS 93810 (W.D.N.C. 2019).

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Writer’s Note: I’ve been watching Persaud’s case since he filed his petition seven years ago. My passion is postconviction relief, and the savings clause is a real sore point for those stuck with wrongful convictions and sentences. Had Persaud been subject to the jurisdiction of the Tenth or Eleventh Circuits when he filed his petition, he would have never gotten his foot in the door. I firmly believe the U.S. Supreme Court must resolve this severe split among the circuits on the savings clause. And while savings clause relief is rare in any circuit, Judge Whitney, who granted Persaud’s petition, also granted savings clause relief in another case exactly like Persaud’s a week later on June 12, 2019. See: Morrison v. United States, 2019 U.S. Dist. LEXIS 98319 (W.D.N.C. 2019). 

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