180 F.3d 349 (1st Cir. 1999), 98-2215, Rogers v. United States

Docket Nº:98-2215
Citation:180 F.3d 349
Opinion Judge:LIPEZ, Circuit Judge.
Party Name:SCOTT N. ROGERS, Petitioner, Appellant, v. UNITED STATES OF AMERICA, Respondent, Appellee
Attorney:Gordon R. Blakeney, Jr. for appellant. Peter E. Papps, First Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, was on brief for appellee.
Judge Panel:Before Selya, Circuit Judge, Kravitch, Senior Circuit Judge, [*] and Lipez, Circuit Judge.
Case Date:June 17, 1999
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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180 F.3d 349 (1st Cir. 1999)

SCOTT N. ROGERS, Petitioner, Appellant,

v.

UNITED STATES OF AMERICA, Respondent, Appellee

No. 98-2215

United States Court of Appeals, First Circuit

June 17, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. [Hon. Shane Devine, Senior U.S. District Judge].

Gordon R. Blakeney, Jr. for appellant.

Peter E. Papps, First Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, was on brief for appellee.

Before Selya, Circuit Judge, Kravitch, Senior Circuit Judge, [*] and Lipez, Circuit Judge.

OPINION

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LIPEZ, Circuit Judge.

Scott N. Rogers appeals from the district court's denial of his motion filed pursuant to 28 U.S.C. § 2255 to vacate his sentence and set aside his conviction. The court held that his motion was untimely under the limitations period imposed in the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which allows prisoners one year from the date on which their convictions became final to file motions under § 2255. As interpreted by the district court (following the model of several other circuit courts of appeals), AEDPA allows prisoners such as Rogers whose convictions became final before AEDPA's effective date to file motions under § 2255 within one year of that date. Nonetheless, even on this standard, the court held that Rogers' motion was untimely. Rogers therefore challenges on appeal the validity of this interpretation of AEDPA, allowing filing only within a one year " grace period" from AEDPA's effective date.

Prior to denial of the original § 2255 motion, Rogers had moved to amend it by adding a claim based on newly discovered facts regarding the execution of his sentence. The court denied this motion to

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amend as moot in light of its denial of the original § 2255 motion. Rogers then moved to have the court reconsider the timeliness issue as to the new claims on the basis that the motion to amend was filed within one year of Rogers' discovery of new facts. The district court denied the motion. Rogers contests this decision as well on appeal. The district court issued a certificate of appealability limited to the sentencing issues. We ordered briefing on all issues, and now affirm.

I. Background

On April 4, 1989, Manchester, New Hampshire police arrested Scott N. Rogers, a convicted felon who had escaped from the New Hampshire House of Corrections in January of that year. At the time of his capture, Rogers was in constructive possession of a handgun. Rogers was subsequently indicted by a federal grand jury as a convicted felon in possession of a firearm under 18 U.S.C. § 922(g)(1), and was convicted on May 20, 1990 after a jury trial. He was sentenced on July 16, 1990 to a mandatory fifteen year sentence as an armed career criminal under 18 U.S.C. § 924(e)(1). Throughout the federal proceedings, Rogers was housed in the New Hampshire State Prison. The district court's 1990 judgment has no entry in the space reserved for " recommendations to the Bureau of Prisons," and there is no record that the district court either ordered or recommended that the New Hampshire State Prison should be the place of confinement for Rogers' federal sentence. There is also no indication of the court's intent as to whether the federal sentence should run concurrently with any future sentences for related pending state charges. 1 The district court's judgment and sentence indicates that Rogers was " remanded to the custody of the United States Marshal," but according to the terms of the writ of habeas corpus ad prosequendum, Rogers was to be returned to the warden of the New Hampshire State Prison upon completion of the federal court proceedings. The record does not indicate that Rogers was transferred to federal prison at any point.

Rogers' prosecution on related state charges followed. Through new counsel, Rogers pleaded guilty to all remaining 2 state felony charges on August 8, 1990. According to the records of the County Attorney, the New Hampshire Superior Court Judge had indicated to the parties prior to the plea agreement that, in light of the long federal sentence, he would not give any " consecutive time" - that is, he would not sentence Rogers to any time to be served after the federal sentence. Accordingly, the parties agreed that Rogers' sentences for eight of his nine state felony charges should run concurrent to each other and to the federal sentence. Rogers was thus sentenced to 3 1/2 to 7 years imprisonment on each of four of the state felony counts and 7 1/2 to 15 years imprisonment on each of the other four; all these sentences were to run concurrent to each other and to the federal sentence. Finally, Rogers received a suspended sentence of 7 1/2 to 15 years for the remaining charge of theft of a firearm. This suspended sentence was to run consecutive to the 15 year federal sentence. Following these state convictions, Rogers continued to be confined in the New Hampshire State Prison.

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Rogers filed a timely notice of appeal from the federal convictions, but direct appeal was stayed to allow Rogers to consider the merits of filing a § 2255 motion (on ineffective assistance of counsel grounds). Although successor counsel was appointed, a § 2255 motion was never filed. We lifted the stay on February 18, 1994 and Rogers proceeded with his direct appeal before this court. We affirmed the federal conviction on December 8, 1994, see United States v. Rogers, 41 F.3d 25 (1st Cir. 1994), and Rogers' sentence became final with the Supreme Court's denial of certiorari on June 5, 1995. See 515 U.S. 1126 (June 5, 1995).

After another long delay following the denial of certiorari, Rogers filed a § 2255 motion in the district court on June 16, 1997. This motion, predicated entirely on ineffective assistance of counsel grounds, sought to have the sentence vacated and the conviction set aside. The government filed a motion to dismiss the § 2255 motion as untimely. On May 7, 1998, Rogers filed a motion to amend the § 2255 motion (hereinafter the " Motion to Amend" ) by adding a request " to Correct Sentence Nunc Pro Tunc to Effect Concurrent Running of Sentences by Ordering, or in the Alternative by Recommending, Designation of State Facility as Place of Confinement for Federal Sentence." On May 13, 1998, the district court denied the original § 2255 motion as untimely in light of the prevailing judicial interpretation of the AEDPA and denied as moot all other pending motions. Rogers then filed a " Motion to Alter or Amend Judgment under Rule 59(e) or Alternatively for Partial Relief from Judgment under Rule 60(b)." 3 Dkt. 21, May 26, 1998. He argued in his motion that the May 7th Motion to Amend derived " from facts arising within the one-year statute of limitations imposed by the [AEDPA]." Section 2255 provides:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of--

* * * (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

Rogers claimed that he had " newly discovered" that federal authorities intended that his federal sentence should begin running upon completion of his state sentence, i.e. consecutively to the state sentences. Since the government had not filed a responsive pleading, 4 Rogers maintained he had a right to amend the § 2255 motion " once as a matter of course" under Fed.R.Civ.P. 15(a) (governing amendment of pleadings), as he attempted to do with his

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May 7th Motion to Amend. 5 The district court denied this motion on August 13, 1998, on the ground that the § 2255 motion as amended would have effectively sought a reduction in an otherwise lawful sentence. 6

Rogers filed a motion in support of his request for a certificate of appealability 7 on October 13, 1998. A limited certificate of appealability issued from the district court on October 28, 1998. The court's order stated that Rogers was " not entitled to a [certificate of appealability] on the issue of the timeliness of filing of his initial section 2255 petition," but that he was entitled to a certificate of appealability " limited to the issue of whether his federal sentence should be adjusted to run concurrently rather than consecutively" with the state sentences. We ordered all issues briefed, irrespective of the certificate of appealability. See Order (1st Cir. Nov. 30, 1998).

II. Dismissal of the initial § 2255 motion

On April 24, 1996, President Clinton signed into law the AEDPA, which instituted a limitation period for filing motions under 28 U.S.C. § 2255, as follows:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of--

(1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that...

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