Reyes-Requena v. U.S.

• Decision Date: 28 February 2001
• Docket Number: P,REYES-REQUEN,No. 99-41254,99-41254
• Parties: (5th Cir. 2001) JOSE EVARISTOetitioner-Appellant v. UNITED STATES OF AMERICA, Defendant-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 893

243 F.3d 893 (5th Cir. 2001)

JOSE EVARISTO REYES-REQUENA, Petitioner-Appellant v. UNITED STATES OF AMERICA, Defendant-Appellee

No. 99-41254

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

February 28, 2001

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Eastern District of Texas

Before KING, Chief Judge, PARKER, Circuit Judge, and FURGESON,^* District Judge.

KING, Chief Judge:

Jose Evaristo Reyes-Requena appeals the dismissal of his 28 U.S.C. 2241 petition. For the following reasons, we REVERSE and REMAND.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1990, Jose Evaristo Reyes-Requena was convicted in the Southern District of Texas ("Southern District") of possession with intent to distribute cocaine, in violation of 21 U.S.C. 841, and use of a firearm during the commission of a drug-trafficking offense, in violation of 18 U.S.C. 924(c)(1). His convictions were affirmed on direct appeal. See United States v. Reyes-Requena, 940 F.2d 655 (5th Cir. 1991) (unpublished). In 1995, he filed a pro se 28 U.S.C. 2255 motion in the Southern District, which was dismissed.

In July 1996, following the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995),¹ Reyes filed a second 2255 motion in the Southern District and argued that Bailey rendered his 924(c)(1) conviction invalid. The motion was dismissed without prejudice because Reyes had failed to obtain permission from the court of appeals to file a successive 2255 motion. See 28 U.S.C. 2255 (2000). Reyes then sought and obtained the requisite permission from a panel of this court.

With this authorization in hand, Reyes refiled his second 2255 motion in the Southern District on December 26, 1996. The Southern District denied the motion, granting the government's motion to dismiss on procedural grounds (i.e., that Reyes's motion did not satisfy 2255's requirements for successive motions). In July 1997, Reyes filed a motion requesting the Southern District to "reconsider" its dismissal of his second 2255 motion. Concluding that Reyes's motion failed to meet the stringent requirements for second or successive 2255 motions, the Southern District determined Reyes had recourse under 2255's "savings clause."² Because the second 2255 motion was inadequate to test the legality of Reyes's 924(c) conviction, the Southern District determined that he could raise his claim in a 28 U.S.C. 2241 habeas petition. The Southern District therefore construed Reyes's second 2255 motion as a 2241 petition and transferred the petition to the Eastern District of Texas ("Eastern District"), where Reyes was incarcerated.³

The Eastern District, in direct opposition to the holdings of the Southern District, concluded that Reyes's claim was cognizable under 2255, and as a result, 2255's savings clause was inapplicable. The Eastern District therefore dismissed the 2241 petition, and Reyes timely appeals.

II. EASTERN DISTRICT'S JURISDICTION OVER REYES'S CLAIM

We are confronted with orders from two district courts, with each court concluding that the other district court properly has jurisdiction. Further, the government, through its prosecutors in the Southern and Eastern Districts, has advocated two mutually exclusive positions in this litigation.⁴ This predicament arose from efforts to bring sense⁵ to portions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), which this circuit has not yet interpreted.⁶

A claim presented in a second or successive motion under 2255 that was not presented in a prior application must be dismissed unless the applicant shows, inter alia, that the claim relies on a new rule of constitutional law that was previously unavailable and has been made retroactive to cases on collateral review by the Supreme Court. See 28 U.S.C. 2255 (2000). The Southern District, relying on United States v. McPhail, 112 F.3d 197, 199 (5th Cir. 1997), treated Bailey as a substantive, non-constitutional decision concerning the reach of a federal statute (and not as a new rule of constitutional law). Therefore, because the Bailey claim in Reyes's second 2255 motion did not satisfy the requirements of 2255, the Southern District concluded, pursuant to 28 U.S.C. 2244(b)(4), that it could not review the merits of the motion.

The Eastern District disagreed, relying on a statement in United States v. Rocha, to the effect that a prisoner "could hardly be expected to have raised a Bailey claim before Bailey was decided, but his proper course of action is to file a successive 2255 motion." 109 F.3d 225, 229 (5th Cir. 1997). The Eastern District further noted that a panel of this court had certified Reyes's second 2255 motion, making it clear that the Southern District could consider the merits of his Bailey claim.

On appeal, Reyes contends that the Eastern District erred and that his claim is properly cognizable under 2241.⁷ The government, on the other hand, asserts that the Eastern District did not err, requesting that Reyes's second 2255 motion be reopened in the Southern District, and his Bailey claim decided on the merits.

We first find that 2244(b)(3)(C) and 2244(b)(4) have been incorporated into 2255, thus making the Southern District's evaluation of 2255's requirements for second or successive motions appropriate. Second, we agree with the Southern District's determination that Reyes's Bailey claim is not cognizable in a successive 2255 motion. Finally, we also agree with the Southern District that the appropriate vehicle for Reyes's Bailey claim is a habeas writ such as 2241.

A. Sections 2244(b)(3)(C) and 2244(b)(4) Have Been Incorporated into Section 2255

The final paragraph of 2255 states: "A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain [one of the following two requirements]." 28 U.S.C. 2255 (2000) (emphasis added). Section 2255 fails to specify precisely which provisions of 2244 are incorporated into 2255.⁸ We have also not previously delineated the extent to which 2244 has been incorporated into 2255 by virtue of its final paragraph.⁹

This case presents two specific questions regarding 2244 incorporation. We must first determine whether 2255 incorporates 2244(b)(3)(C) because the Southern District implicitly relied upon that incorporation in its analysis.¹⁰ Second, we must determine whether 2244(b)(4)¹¹ has been incorporated into 2255 because the Southern District explicitly relied upon that provision to conduct its own threshold analysis of Reyes's second 2255 motion to ascertain whether the motion satisfied the requirements for successive 2255 motions.¹² We find that 2255 incorporates both 2244(b)(3)(C) and 2244(b)(4).

1. Section 2244(b)(3)(C) Has Been Incorporated into Section 2255

Section 2244(b)(3)(C) states: "The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection." 28 U.S.C. 2244(b)(3)(C) (2000) (emphasis added). It thus provides that a court of appeals must evaluate requests to file second or successive applications under a "prima facie" standard.

There is a dearth of jurisprudence on whether 2244(b)(3)(C) has been incorporated into 2255. This question has been directly addressed only by the Seventh Circuit, alluded to by the Second Circuit, and mentioned in passing by the Tenth Circuit. Each of these circuits views 2244(b)(3)(C) as applicable to successive 2255 motions.

Writing for a panel of the Court of Appeals for the Seventh Circuit, Judge Posner held that "in considering an application under section 2255 for permission to file a second or successive motion [a court of appeals] should . . . insist only on a prima facie showing of the motion's adequacy." Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997) (emphasis added). Finding that the legislative history does not distinguish between successive motions by state¹³ or federal prisoners, Judge Posner concluded that the court could not "think of any reason why the standard for federal prisoners would be more stringent" than for state prisoners. See id.¹⁴ This Seventh Circuit holding comports with an earlier statement from the Second Circuit, which had summarily noted in passing: "Subsection (C) [of 2244(b)(3)] provides the standard for certification, has no counterpart in 2255, and therefore apparently applies to 2255." Liriano v. United States, 95 F.3d 119, 121 n.1 (2d Cir. 1996). It also tracks the Tenth Circuit's implicit assumption that 2255 incorporated 2244(b)(3)(C). See Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997) (stating that the petitioner had "failed to make the prima facie showing required by 2255" (emphasis added)).

We agree with our sister circuits and find that 2244(b)(3)(C) has been incorporated into 2255. A plain reading of the text accommodates this view, as it states that successive 2255 motions "must be certified as provided in section 2244." See United States v. Villa-Gonzalez, 208 F.3d 1160, 1164 (9th Cir. 2000) ("Section 2255, by its terms, expressly incorporates the procedures for certification of the filing of a second or successive motion set forth in section 2244."); see also supra note 9. Further, "[i]n the absence of . . . specification, it is logical to assume that Congress intended to refer to all of the subsections of 2244 dealing with the authorization of second and successive motions." Triestman v. United States, 124 F.3d 361, 367 (2d Cir. 1997); see also 2 James C. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure 41.7d, at 1609 (3d ed. 1998) ("[Section 2255] appears to adopt the same procedure for section 2255 cases as applies to successive state-prisoner habeas corpus petitions [under 2244]." (emphasis omitted)).

Although the legislative history...