776 F.2d 1344 (7th Cir. 1985), 83-3058, United States v. Kimberlin
| Citation | 776 F.2d 1344 |
| Party Name | UNITED STATES of America, Plaintiff-Appellee, v. Brett C. KIMBERLIN, Defendant-Appellant. |
| Case Date | November 04, 1985 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Seventh Circuit |
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Argued Sept. 12, 1985.
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Donald V. Morano, Chicago, Ill., for defendant-appellant.
Kennard P. Foster, U.S. Atty's. Office, Indianapolis, Ind., for plaintiff-appellee.
Before COFFEY, EASTERBROOK and RIPPLE, Circuit Judges.
EASTERBROOK, Circuit Judge.
Among Brett Kimberlin's many convictions are two for receiving explosives, which felons may not do. 18 U.S.C. Sec. 842(i)(1). One count charged Kimberlin with receiving blasting caps, the other with receiving a plastic explosive. The district court sentenced Kimberlin in 1981 to concurrent terms of five years' imprisonment, terms that run consecutively to other terms imposed in Indiana and Texas for dealing in drugs. We affirmed the explosives convictions by an unpublished order, and on April 18, 1983, the Supreme Court denied Kimberlin's petition for certiorari, 460 U.S. 1092, 103 S.Ct. 1792, 76 L.Ed.2d 359 (1983).
Kimberlin filed a motion 116 days later, on August 12, 1983, seeking a reduction of sentence under Fed.R.Crim.P. 35(b). He argued that he had begun to cooperate with the government and should receive a reward. The government opposed the motion--ungratefully, if one believes Kimberlin, although the government's position is that Kimberlin has never provided it any help concerning his dealings in explosives and that to the extent he has offered other aid he should direct his plea to the Parole Commission rather than the court. Kimberlin also filed a motion to disqualify Judge Steckler, who had sentenced him. On August 23 Judge Steckler stepped aside. By now 127 days had passed since the denial of certiorari, or seven days more than the 120 provided by Rule 35(b). No one drew the question of timeliness to the attention of Judge Dillin, to whom the case had been reassigned. On November 8 Judge Dillin denied the motion, concluding that Kimberlin had not "presented any facts which warrant a reduction or modification" of the sentence.
The parties have debated the merits of this decision with great vigor on appeal. Kimberlin also argues that Judge Dillin was biased against him, so that the case should be remanded for a fresh ruling by still a third judge. We conclude, however, that we cannot reach the merits. Gaertner v. United States, 763 F.2d 787 (7th Cir.1985), holds that the version of Rule 35(b)
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in effect until August 1, 1985, gives judges only 120 days in which to act, and that this is a jurisdictional limit that may not be extended. The Rule said that the court "may reduce sentence within 120 days" after the denial of certiorari, and Gaertner holds that the Rule meant what it said. See also United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979) (dictum); United States v. Kajevic, 711 F.2d 767 (7th Cir.1983), cert. denied, 464 U.S. 1047, 104 S.Ct. 721, 79 L.Ed.2d 182 (1984). The district court's power to act on Kimberlin's motion under Rule 35(b) therefore ended on August 16, 1983.
Gaertner was decided on June 3, 1985, and the question naturally arises whether that decision is retroactive. The answer is yes. Gaertner held that the time limit of Rule 35(b) limits the subject matter jurisdiction of the district court. Because the power of the court, rather than the wisdom of its exercise, was at stake, it does not matter when Gaertner came down. "A court lacks discretion to consider the merits of a case over which it is without jurisdiction, and thus, by definition, a jurisdictional ruling may never be made prospective only." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 676, 66 L.Ed.2d 571 (1981). See also De La Rama Steamship Co. v. United States, 344 U.S. 386, 73 S.Ct. 381, 97 L.Ed. 422 (1953); Bruner v. United States, 343 U.S. 112, 116-17, 72 S.Ct. 581, 584, 96 L.Ed. 786 (1952).
Two amendments to Rule 35 present a more difficult question of retroactivity. On November 1, 1986, Sec. 215(b) of Pub.L. 98-473, 98 Stat. 2031, goes into effect. This statute prescribes a new Rule 35, under which a district court will have discretion to reduce a sentence only if the government so recommends in light of the defendant's cooperation. In the absence of such a recommendation, the court will be able to reduce a sentence only if it is illegal or the court of appeals orders a reduction. An interim rule effective August 1, 1985, however, was designed to upset Kajevic, the dictum in Addonizio, and perforce Gaertner. It states that if the defendant files a motion within 120 days after the denial of certiorari, the court may decide the motion "within a reasonable time." This rule is not a reason to reconsider Gaertner; the court was aware of the change that would apply after August 1. See 763 F.2d at 789 n. 2, 795 n. 9. It is possible, however, that the new rule should be treated as if in effect before August 1, 1985.
A court generally applies the law governing at the time of its decision, and if the law changes while the case is on appeal the appellate court applies the new rule. Bradley v. School Board, 416 U.S. 696, 711-16, 94 S.Ct. 2006, 2016-18, 40 L.Ed.2d 476 (1974). There must be a rule of decision, and the one in force at the time the court disposes of the case is the one the legislature deems best for adjusting entitlements. In Bradley the question was whether the school board or the plaintiffs who sued to obtain relief from racial discrimination would bear the legal fees of the litigation. The costs were sunk; the new law determined who should bear bygone costs; and the Court held that the fees could be shifted to the defendants even though much of the expense had been incurred before the statute became effective.
This approach may seem to overlook the effects the old rule had on how people governed their own affairs. A rule designed to influence how people behave cannot have much effect on behavior that occurred before the rule changed. Compare United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed. 2d 202 (1982), with United States v. Peltier, 422 U.S. 531, 538-42, 95 S.Ct. 2313, 2317-2320, 45 L.Ed.2d 374 (1975). It is hard to condemn under a new rule the conduct of people who conformed to the old one. But the application of the new rule does not always penalize conforming conduct. In Bradley the new rule encouraged plaintiffs in civil rights cases to spend more in legal fees. The application of the fee-shifting rule to the Bradley case itself, however, did not penalize any conduct. Had the plaintiffs known
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from the beginning of the litigation that they could obtain an award of fees, they would have poured more legal time into the case, and the defendants either would have settled on the plaintiffs' terms or paid even more than they did.
Some provisions of the constitution, from the takings clause and the contracts clause to the ex post facto clause and the due process clause, are designed to deal with retroactive applications of new rules that could penalize detrimental reliance on old rules. These doctrines hardly apply to a case such as this, in which a retroactive application of the new rule would enlarge Kimberlin's entitlements. They are important, however, because the concerns that underlie them also led to a rule of statutory construction, sometimes called the vested rights doctrine, that limits the retrospective application of new statutes. See Bradley, supra, 416 U.S. at 720, 94 S.Ct. at 2020 (describing the principle that new rules do not ordinarily apply to "a right that had matured or become unconditional"). The question whether a law applies retrospectively is one of statutory construction, see Carlton v. Baww, Inc., 751 F.2d 781, 787 n. 6 (5th Cir.1985), and we recur to the tools of this trade even though retrospective application of the interim Rule 35(b) would not violate any entitlements.
The vested or matured rights approach to statutory construction often applies to entitlements that turn on the passage of time. For example, if a statute of limitations sets a period of two years, a subsequent statute setting a period of five years presumptively would not apply to a claim that became barred under the old law before the new one was enacted. E.g., Herm v. Stafford, 663 F.2d 669, 683 & n. 20 (6th Cir.1981); Davis v. Valley Distributing Co., 522 F.2d 827 (9th Cir.1975), cert. denied, 429 U.S. 1090, 97 S.Ct. 1099, 51 L.Ed.2d 535 (1977); James v. Continental Insurance Co., 424 F.2d 1064 (3d Cir.1970). And the Supreme Court has used the same approach when dealing with changes in jurisdictional rules. An expansion of the court's jurisdiction can revive a claim, see Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 607 n. 6, 98 S.Ct. 2002, 2005 n. 6, 56 L.Ed.2d 570 (1978), but the outcome is sufficiently unusual that the legislature should say so pretty clearly before a court will conclude that the statute produces this effect. E.g., Davidson Bros. Marble Co. v. United States ex rel. Gibson, 213 U.S. 10, 29 S.Ct. 324, 53 L.Ed. 675 (1909); Stephens v. Cherokee Nation, 174 U.S. 445, 19 S.Ct. 722, 43 L.Ed. 1041 (1899). Cf. United States v. Sioux Nation, 448 U.S. 371, 395-407, 100 S.Ct. 2716, 2731-2736, 65 L.Ed.2d 844 (1980).
The former Rule 35(b) contained a time limit, a limit that had expired long before the new Rule 35(b)...
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