McIver v. U.S.

• Citation: 307 F.3d 1327
• Decision Date: 30 September 2002
• Docket Number: No. 01-10507.,01-10507.
• Parties: Ralph McIVER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

307 F.3d 1327

Ralph McIVER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 01-10507.

United States Court of Appeals, Eleventh Circuit.

September 30, 2002.

Susan Jill Benton, Federal Defender Program, Inc., Atlanta, GA, for Petitioner-Appellant.

Amy Lee Copeland, Savannah, GA, for Respondent-Appellee.

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

Before BARKETT and MARCUS, Circuit Judges, and SCHLESINGER,^* District Judge.

BARKETT, Circuit Judge:

Ralph McIver, a federal prisoner, appeals the district court's dismissal of his 28 U.S.C. § 2255 motion as a second or successive motion filed without the permission of the court of appeals. Because his prior motion was a successful motion to file an out-of-time notice of appeal — in other words, one that simply protected his right to a direct appeal — he argues that it should not count against him in subsequent collateral proceedings. We agree, and therefore join the majority of our sister circuits in holding that a successful motion to file an out-of-time notice of appeal is not to be counted as a first petition for the purposes of subsequent collateral proceedings. Accordingly, we reverse the decision of the district court.

BACKGROUND

Following his conviction for various cocaine offenses, McIver was sentenced to 300 months' imprisonment and ten years of supervised release. Despite his expressed desire to appeal, his trial counsel did not file a notice of appeal. Eleven days after he had been sentenced, McIver filed a motion for permission to file an out-of-time notice of appeal, which was denied. The court then appointed counsel and allowed McIver sixty days to file a motion pursuant to 28 U.S.C. § 2255 to raise the issue of trial counsel's ineffectiveness in failing to file the notice of appeal. The court clerk sent McIver's appointed counsel a letter stating: "The only issue for the 28:2255 petition is to determine whether Mr. McIver told his attorney to appeal and his attorney refused." Through his appointed counsel, McIver filed the § 2255 motion, raising only the ineffectiveness claim regarding the failure to file the notice of appeal.

The court granted the motion, and by agreement of the parties, a new judgment was entered on October 2, 1998 in place of the prior, unappealed judgment, thereby allowing McIver to file a timely notice of appeal. We subsequently affirmed McIver's conviction and sentence. United States v. McIver, 184 F.3d 825 (11th Cir.1999) (Table).

McIver then filed a motion pursuant to § 2255 challenging the conviction and sentence that had been imposed on October 2, 1998. The district court dismissed the motion as a second or successive application for post-conviction relief that could not be filed without permission from this Court. We then granted a certificate of appealability to determine, under the circumstances presented, whether the district court properly held McIver's motion to be "second or successive" as that phrase is contemplated by the Anti-Terrorism and Effect Death Penalty Act of 1996 ("AEDPA"). We review de novo the district court's dismissal of a 28 U.S.C. § 2255 motion as second or successive. See United States v. Orozco-Ramirez, 211 F.3d 862, 865 (5th Cir.2000).

DISCUSSION

AEDPA amended 28 U.S.C. § 2255 to impose new limitations on a prisoner's ability to file a "second or successive" application for post-conviction relief. To file a second or successive motion, the petitioner must obtain the permission of the court of appeals, and such permission may be granted only if the claim is based on:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255, referencing 28 U.S.C. § 2244.

AEDPA does not define "second or successive," but five circuits have previously considered whether a motion under § 2255 is "second or successive" when an earlier § 2255 motion was granted to afford the petitioner the opportunity to file a direct criminal appeal. The Fourth, Seventh, and Tenth Circuits have held that a subsequent motion is not "second or successive" in this circumstance. See In re Goddard, 170 F.3d 435 (4th Cir.1999); Shepeck v. United States, 150 F.3d 800 (7th Cir.1998); United States v. Scott, 124 F.3d 1328 (10th Cir.1997). The First and Fifth Circuits have held that it is. See United States v. Orozco-Ramirez, 211 F.3d 862 (5th Cir.2000); Pratt v. United States, 129 F.3d 54 (1st Cir.1997). We agree with the Fourth, Seventh, and Tenth Circuits and hold that a successful motion to permit a direct appeal does not render a subsequent collateral challenge "second or successive" under AEDPA.

Long ago, the Supreme Court made it clear that the default of an appeal by constitutionally defective counsel requires entry of a new judgment for the purpose of permitting the perfection of an appeal. See Rodriquez v. United States, 395 U.S. 327, 332, 89 S.Ct. 1715, 1718, 23 L.Ed.2d 340 (1969) (remanding the case "to the District Court where petitioner should be resentenced so that he may perfect an appeal in the manner prescribed by the applicable rules"). As a formal matter, therefore, McIver's present challenge is not a second or successive motion because it attacks not the judgment at issue in his earlier § 2255 motion but the new judgment that was entered to permit his out-of-time appeal — that is, the judgment entered by the district court on October 2, 1998. Conversely, McIver's first § 2255 motion did not attack the judgment now at issue. Nor, for that matter, did the earlier motion attack the original judgment in the sense of seeking to have a conviction overturned or sentence vacated. Rather, McIver's first § 2255 motion sought only the opportunity to prosecute a direct appeal, which might or might not have led (and, in fact, did not lead) to the reversal of his conviction and sentence.¹

The notion that some types of collateral challenge do not render subsequent petitions or motions "second or successive" is not an unfamiliar one. See, e.g., Slack v. McDaniel, 529 U.S. 473, 486-87, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Stewart v. Martinez-Villareal, 523 U.S. 637, 644, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998). In a number of different circumstances, courts have held that, because of the nature of the prior collateral proceedings, a later collateral challenge must be regarded as a first application for habeas relief. See, e.g., Slack, 529 U.S. at 486-87, 120 S.Ct. 1595 (dismissal of petitioner's § 2254 claims for failure to exhaust state remedies does not render a subsequent petition second or successive); Stewart, 523 U.S. at 643-44, 118 S.Ct. 1618 (petitioner's Ford v. Wainwright claim that he is not competent to be executed should not be treated as a "second or successive" petition, despite the fact that it had been raised in a prior petition and dismissed as unripe); Reeves v. Little, 120 F.3d 1136, 1139 (10th Cir. 1997) (prior habeas action challenging only the constitutionality of the state's system of processing indigent criminal appeals does not render later § 2254 petition successive); Chambers v. United States, 106 F.3d 472, 475 (2d Cir.1997) (prior application for relief from judgment mislabeled as an application under § 2255 does not render any subsequent § 2255 motion second or successive); Benton v. Washington, 106 F.3d 162, 165 (7th Cir.1996) (§ 2254 petition dismissed for failure to pay required filing fees not counted as a first petition for purpose of determining successor status).

We find a similar approach to be appropriate in the case of a prisoner's reliance on a post-conviction mechanism for the purpose of taking an out-of-time appeal. When a defendant loses the opportunity to appeal due to constitutionally defective counsel, the point of the § 2255 remedy is to "put [the defendant] back in the position he would have been in had his lawyer filed a timely notice of appeal." Goddard, 170 F.3d at 437 (citation omitted); see also Scott, 124 F.3d at 1329 (same). Since a defendant who prosecutes a timely appeal is entitled thereafter to bring a collateral attack on the judgment, a defendant who wins an out-of-time appeal must also be entitled to one full and fair collateral attack. Shepeck, 150 F.3d at 801 ("[T]he new sentence puts the defendant in the same legal position as a person taking an appeal from the original judgment. Such a person is entitled to prosecute one collateral attack on the judgment.").

By contrast, if a petitioner in McIver's position were denied the opportunity to bring a collateral challenge after waging the out-of-time appeal, he would not in fact be restored to the position he would have occupied had counsel not abandoned him. Rather, such a petitioner would have no choice but to plead all collateral claims alongside the request for an out-of-time appeal; omission of the additional collateral claims would generally foreclose later review under circumstances not encompassed by AEDPA's exceptions for newly discovered evidence and new rules of law.²...