135 F.3d 1000 (5th Cir. 1998), 96-41188, United States v. Flores

Docket Nº:96-41188.
Citation:135 F.3d 1000
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Romeo Trinidad FLORES, Jr., Defendant-Appellant.
Case Date:March 05, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1000

135 F.3d 1000 (5th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

Romeo Trinidad FLORES, Jr., Defendant-Appellant.

No. 96-41188.

United States Court of Appeals, Fifth Circuit

March 5, 1998

Rehearing Denied May 27, 1998.

Page 1001

Jeffery Alan Babcock, Paula Camille Offenhauser, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Romeo Trinidad Flores, Jr., Texarkana, TX, pro se.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD, DUHE and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Romeo Trinidad Flores, Jr. (Flores) appeals the district court's denial of his motion to vacate his sentence under 28 U.S.C. § 2255. We affirm.

Facts and Proceedings Below

On August 29, 1991, Flores was convicted following a jury trial of conspiring to possess with intent to distribute in excess of 1,000 kilograms of marihuana in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). 1 On direct appeal, this Court reversed Flores' conviction due to the erroneous admission of his codefendant's grand jury testimony. United States v. Flores, 985 F.2d 770 (5th Cir.1993). In his second jury trial, Flores was again convicted. In an opinion dated November 3, 1994, we affirmed the second conviction. United States v. Flores, 40 F.3d 385 (5th Cir.1994) (unpublished table decision).

On April 24, 1996, the Anti-terrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA" or "Act") was signed into law. 2 Most pertinent to Flores, section 105 of the Act amended 28 U.S.C. § 2255 to include a one-year period of limitations. 3

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Approximately four months after the enactment of the AEDPA, Flores filed a pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255, asserting numerous errors including ineffective assistance of counsel, outrageous government misconduct, violation of the Jenks Act, a Brady violation, and error in the jury instructions. 4

In response, the government filed a motion to dismiss, or in the alternative, for summary judgment, arguing both that Flores' motion was procedurally barred by the one-year period of limitation contained in section 2255 as amended by AEDPA (but there acknowledging that a Department of Justice "policy letter" construed the Act's limitations period to commence to run on its effective date) and that the allegations in Flores' motion were fatally conclusory and lacked any evidentiary support. The district court granted summary judgment in favor of the government, finding Flores' contentions to be "entirely conjectural and unsupported by anything in the record." Flores filed a timely notice of appeal, and a certificate of appealability (COA) was granted to permit Flores' appeal to this Court. 5

Discussion

The district court did not address the limitations question, denying the motion on other grounds. However, because we may affirm on any grounds that were urged below, we address as a threshold issue whether Flores' motion is time barred under the limitations period of the amended section 2255.

The applicability of the limitations provision to motions filed after the enactment of the AEDPA but attacking convictions which became final prior thereto is a question of first impression in this Circuit. 6 Those of our sister circuits that have considered the issue 7 have all held that such petitioners must be accorded a reasonable time after the enactment of the AEDPA within which to pursue collateral relief. 8 Perhaps the seminal

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case that came to this conclusion was Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996), which determined that prisoners' reliance interests dictated that no collateral attack filed within one year of the AEDPA's enactment would be dismissed as time barred under the AEDPA limitation periods. Id. at 866. The Supreme Court granted certiorari in Lindh and reversed on a separate issue. 9 Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Although the Court did not specifically address the limitation provisions, or the Seventh Circuit's interpretation of it in Lindh, it did clarify the appropriate construction and temporal application of Title I of the Act, which contains these provisions. Thus, although Lindh does not provide an answer to the question before us, it does help to define the appropriate inquiry.

It is axiomatic that the touchstone of statutory construction is legislative intent. Unfortunately, as is often the case, Congress's intent as to the appropriate temporal application of the limitation provisions is neither apparent on the face of the statute nor otherwise unambiguously expressed. As the Supreme Court noted in Lindh, the AEDPA is unclear in a number of important respects, including the temporal reach of several provisions. 10 In resolving the ambiguity as to the temporal reach of the AEDPA habeas amendments in general, the Court stated that "[i]n determining whether a statute's terms would produce a retroactive effect, ... and in determining a statute's temporal reach generally, our normal rules of construction apply." Lindh, --- U.S. at ----, 117 S.Ct. at 2063.

We have interpreted Lindh as articulating a generally-applicable "analysis governing the temporal reach of newly enacted legislation." Williams v. Cain, 117 F.3d 863, 864 (5th Cir.1997). As the Supreme Court stated in Lindh, and we reiterated in Williams, "[i]n the absence of a plain statement of the legislature's intent that a statute be applied retroactively, a court must ask whether normal rules of statutory construction suggest that a new provision applies to the case before it." Williams, 117 F.3d at 864 (citing Lindh, --- U.S. at ---- - ----, 117 S.Ct. at 2063-64). Thus, we apply the traditional rules of statutory construction to the provision before us in determining its temporal reach.

In applying legislatively amended periods of limitation, we have typically construed them as "govern[ing] the secondary conduct of filing suit, not the primary conduct of the [parties]." 11 As a consequence, we normally apply the statute of limitation that was in effect at the time of the filing of the suit. We recently took this approach in

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St. Louis v. Texas Worker's Compensation Commission, 65 F.3d 43 (5th Cir.1995). In St. Louis, we considered the issue of whether application of a limitations period that was enacted prior to the filing of suit but subsequent to the conduct giving rise to the suit was appropriate and permissible. Id. at 45-47. We held that the shorter, amended limitations period governed and, consequently, that the action was time barred. Id. at 48. We reasoned that there was no inequity in applying the new limitations period because the plaintiff had specific notice of the amended period. Id. at 44. And although the time within which the plaintiff had to file was significantly reduced, 12 the shortened period still allowed the plaintiff reasonable time within which to pursue his claim in court. 13

Although our general rule, as stated in St. Louis, is to apply an amended period of limitations to all suits filed after the effective date of amendment, such application is subject to at least one restriction. This constraint was expressed by the Supreme Court in Wilson v. Iseminger, 185 U.S. 55, 60-63, 22 S.Ct. 573, 575, 46 L.Ed. 804 (1902), where the Court stated:

"It may be properly conceded that all statutes of limitation must proceed on the idea that the party has full opportunity afforded him to try his right in the courts. A statute could not bar the existing rights of claimants without affording this opportunity; if it should attempt to do so, it would not be a statute of limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions."

The Court went on to state that "[i]t is essential that such statutes allow a reasonable time after they take effect for the commencement of suits upon existing causes of action." Id. at 60-63, 22 S.Ct. at 575.

If literally and mechanically applied, the statutory provision here in question would have precisely this prohibited effect: any...

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