Hunter v. U.S.

• Decision Date: 10 December 1996
• Docket Number: 96-6770,Nos. 96-6513,s. 96-6513
• Citation: 101 F.3d 1565
• Parties: , 10 Fla. L. Weekly Fed. C 579 Charles Edward HUNTER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Henry C. BAILEY, Petitioner-Appellant, v. John E. NAGLE, Warden, Jeff Sessions, Attorney General for the State of Alabama, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1565

101 F.3d 1565

65 USLW 2426, 10 Fla. L. Weekly Fed. C 579

Charles Edward HUNTER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Henry C. BAILEY, Petitioner-Appellant, v. John E. NAGLE, Warden, Jeff Sessions, Attorney General for

the State of Alabama, Respondent-Appellee.

Nos. 96-6513, 96-6770.

United States Court of Appeals,

Eleventh Circuit.

Dec. 10, 1996.

G. Douglas Jones, Birmingham, AL, for Charles Edward Hunter.

Caryl Privett, Frank M. Salter, U.S. Attorney's Office, Birmingham, AL, David Kris, U.S. Department, Washington, DC, for U.S.

William R. King, Federal Public Defender, Middle District of Alabama Federal Defender Program, Inc., Montgomery, AL, for Henry C. Bailey.

Norbert Hershael Williams, Stephen N. Dodd, Office of the Attorney General, Montgomery, AL, for John E. Nagle and Jeff Sessions.

Appeal from the United States District Court for the Northern District of Alabama.

Appeal from the United States District Court for the Middle District of Alabama.

Before HATCHETT, Chief Judge, and TJOFLAT, KRAVITCH, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges.

CARNES, Circuit Judge:

We heard these cases en banc to decide whether a district court judge is authorized to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and Federal Rule of Appellate Procedure 22(b), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. We answer that question in the affirmative. We also decide that the AEDPA amendments to § 2253(c) and Rule 22(b) apply to all 28 U.S.C. § 2254 cases in which no certificate of probable cause to appeal was obtained under preexisting law before the effective date of the Act, and to all 28 U.S.C. § 2255 cases in which no notice of appeal was filed before that effective date.

I. PROCEDURAL HISTORY

A. The Bailey Case

Henry C. Bailey is an Alabama inmate who is serving a life sentence imposed in 1991 under Alabama's Habitual Felony Offender Act, see Ala.Code § 13A-5-9 (1975), as a result of his conviction for distribution of a controlled substance in violation of Ala.Code § 13A-12-211 (1975). After exhausting his state court remedies, Bailey filed a 28 U.S.C. § 2254 application for relief in the United States District Court for the Middle District of Alabama on February 24, 1995. Adopting a magistrate judge's report and recommendation that relief be denied, the district court dismissed Bailey's application on July 11, 1996.

Thereafter, Bailey filed a notice of appeal, a motion to proceed in forma pauperis on appeal, and a motion for a certificate of probable cause to appeal. In an August 21, 1996 order, the district court granted Bailey's in forma pauperis motion. By separate order that same date, the district court treated Bailey's motion for a certificate of probable cause as a motion for a certificate of appealability under 28 U.S.C. § 2253(c) and Rule 22(b), as amended. Even though the court granted Bailey a certificate of appealability, it acknowledged that there was an unsettled question of law about whether a district judge is authorized to do so. More specifically, the court noted that § 2253(c)(1), as amended, provides that a "circuit justice or judge" may issue a certificate of appealability, while the amended Rule 22(b) provides that a "district or a circuit judge" may do so. The court warned Bailey that he might be required to request a certificate of appealability from this Court. He has not done so.

In granting Bailey a certificate of appealability, the district court applied the "substantial showing of the denial of a constitutional right" standard set out in § 2253(c)(2). However, the court did not specify, as required by § 2253(c)(3), which of the multitude of issues Bailey had raised met that standard.

B. The Hunter Case

In 1990, following a guilty plea, Charles Edward Hunter was convicted in the United States District Court for the Northern District of Alabama of one count of possessing cocaine with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1), and of one count of using and carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c). He was fined $10,000.00, and sentenced to eighty-four months imprisonment to be followed by five years of supervised release.

In 1991 Hunter filed an initial 28 U.S.C. § 2255 motion for relief from his sentence. The motion was denied, and this Court affirmed that denial. Hunter filed another § 2255 motion in 1991, which was also denied. In 1995, Hunter filed yet another motion for § 2255 relief, which the district court dismissed as "utterly frivolous."

This appeal results from Hunter's latest § 2255 motion, which he filed on March 15, 1996, and the district court denied on April 24, 1996. On May 17, 1996, Hunter filed a notice of appeal and motion to proceed in forma pauperis. On May 30, 1996, the district court granted that motion, and it treated the notice of appeal as including an application for a certificate of appealability.

The district court expressed doubt about whether it was authorized to grant a certificate of appealability, stating: "There are substantial internal inconsistencies between the amended § 2253 and the amended Rule 22, which make it unclear whether this court is intended or indeed has the authority to issue a certificate of appealability from the denial of a section 2255 motion." Nonetheless, "[o]ut of an abundance of caution," the district court certified that Hunter had made a substantial showing of the denial of a constitutional right regarding one issue, which it specified in the order. ¹

C. The Grant of Review

Because the issue is an important one involving the proper handling of hundreds of cases a year in this circuit, we took the extraordinary step of granting hearing en banc to resolve the matter. We directed the parties in Bailey to address the issue of whether a district court is authorized to issue a certificate of appealability in 28 U.S.C. § 2254 cases, and we directed the parties in Hunter to address the same issue involving 28 U.S.C. § 2255 cases. We also invited the other two states in our circuit, as well as a number of defender organizations, to file amici briefs. Before reaching the issue for which we granted hearing en banc, we must first resolve a preliminary issue the parties have raised.

II. THE APPLICABILITY OF THE AEDPA AMENDMENTS TO PENDING CASES

In addition to briefing and arguing the issue we posed, Bailey and Hunter contend that the AEDPA amendments to 28 U.S.C. § 2253(c) and to Federal Rule of Appellate Procedure 22(b) are not applicable to their cases, because the proceedings, although not the appeals, were already pending on April 24, 1996, the AEDPA's effective date. In Bailey's case, his application for 28 U.S.C. § 2254 relief was filed before that effective date, but it was not denied and a notice of appeal filed, until after the effective date. In Hunter's case, his motion for 28 U.S.C. § 2255 relief was filed before but denied on AEDPA's effective date, and his notice of appeal was filed after that date.

Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), provides the analytical framework for determining whether newly enacted statutory provisions are applicable to pending cases. A court's first, and sometimes last, task under Landgraf analysis is "to determine whether Congress has expressly prescribed the statute's proper reach." Id. at ----, 114 S.Ct. at 1505. If Congress has done so, that is the end of the Landgraf analysis, and the court simply follows the evident intent of Congress. Id. However, where the congressional intent about applicability to pending cases is not evident, or is nonexistent, more is required. The more that is required is application of the judicial default rules specified in Landgraf, to which we will return later.

Taking the first Landgraf step, we look to see if Congress expressly prescribed whether the amendments to § 2253(c) and to Rule 22(b), which are contained in §§ 102 and 103 of the AEDPA, were applicable to pending cases. Congress said nothing one way or the other. Hunter and Bailey ² do not dispute that there is no express congressional direction on the matter, but they do contend that the AEDPA implicitly indicates an intent not to apply these amendments to pending cases. They point to § 107(c) of the Act. Section 107 sets out special rules for capital cases in certain qualifying jurisdictions, and subsection (c) of it expressly provides that those new rules are applicable to pending cases. The argument is that since Congress expressly provided that § 107 was to apply to pending cases, but did not so provide for §§ 102 and 103, Congress must have intended for those two sections not to apply to pending cases.

We reject that argument. To begin with, we note that the argument assumes that evidence of legislative intent, short of an explicit statutory command about the provision in question, is enough to avoid application of the Landgraf judicial default rules. There appears to be a conflict among the circuits, and even within some circuits, about whether Landgraf 's first step can be satisfied by evidence of legislative intent other than in an express statutory command. Compare, e.g., Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 538 (1st Cir.1995) (requiring clear statutory language demanding retroactivity), cert. denied, --- U.S. ----, 116 S.Ct. 1044, 134 L.Ed.2d 191 (1996) and Reyes-Hernandez v. INS, 89 F.3d 490, 492 (7th Cir.1996) (presumption against retroactivity "unless the statute provides explicitly for retroactive application"; requires "clear statement") and Chenault v. U.S. Postal Serv., 37 F.3d 535, 537 (9th Cir.1994) (presumption against retroactivity unless statute's language dictates retroactivity) with Green v. Nottingham, 90 F.3d 415, 419 (10th Cir.1996)...