Diggs v. U.S., 83-3143

• Decision Date: 26 July 1984
• Docket Number: No. 83-3143,83-3143
• Parties: Alfred B. DIGGS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 239

740 F.2d 239

Alfred B. DIGGS, Appellant, v. UNITED STATES of America, Appellee.

No. 83-3143.

United States Court of Appeals Third Circuit.

Argued Jan. 23, 1984.

Decided July 26, 1984.

Peter T. Campana (argued), Campana & Campana, Williamsport, Pa., for appellant.

David Dart Queen, U.S. Atty., Bernard V. O'Hare (argued), Asst. U.S. Atty., Scranton, Pa., for appellee.

Before GIBBONS and BECKER, Circuit Judges, and ATKINS, District Judge. ^*

OPINION OF THE COURT

BECKER, Circuit Judge.

Federal Rule of Criminal Procedure 35(b) gives a district court the power to reduce a sentence it previously imposed upon a criminal defendant; the rule also states, generally speaking, that this reduction must take place, if at all, within 120 days of a final decision upholding the conviction. In the case before us, which is an appeal from a district court denial of a motion for collateral relief under 28 U.S.C. Sec. 2255, the district court, after waiting two and a half years, granted prisoner Alfred Diggs' rule 35(b) motion, and then reversed itself, vacating its order on grounds that it had lost jurisdiction by virtue of the passage of time. Diggs claims this last act was error and appeals.

There are three major issues before us. First, we must decide whether the errors asserted by Diggs are cognizable on section 2255 motions, that is, whether the alleged errors are of sufficient magnitude to warrant collateral relief under that section, see Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962), and whether the failure of Diggs to assert the errors on a direct appeal precludes the section 2255 collateral attack, see United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). For the reasons explained below, we hold that the errors asserted by Diggs were of the requisite magnitude and that his failure to raise them on a prior appeal does not preclude his section 2255 action. See United States v. Baylin, 696 F.2d 1030 (3d Cir.1982).

Second, having found section 2255 to have been properly invoked, we must determine whether the district court indeed erred when it ruled that it had lost jurisdiction over Diggs' Rule 35(b) motion and was accordingly obligated to vacate its earlier decision granting that motion. Notwithstanding dictum in United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979), which arguably suggests a contrary conclusion, we hold that the district court had a "reasonable time" beyond the 120-day limit to decide Diggs' motion, accord Virgin Islands v. Gereau, 603 F.2d 438, 442 n. 2 (3d Cir.1979), but that two and a half years was more than a reasonable time.

Third, we must decide whether Rule 35(b), so interpreted, is unconstitutional in that it potentially deprives prisoners of a putative right to have their petition for a reduction of sentence considered by the district court. While we acknowledge the issue to be provoking, particularly in light of the Supreme Court's recent decision in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), we find that no constitutional problem arises here. Accordingly, we affirm the judgment of the district court.

I. FACTS AND PROCEDURAL HISTORY

On December 27, 1978, Alfred B. Diggs was sentenced by the United States District Court for the Middle District of Pennsylvania to a ten-year prison term following his conviction by a jury for armed bank robbery under 18 U.S.C. Sec. 2113(a) & (d) (1976). He appealed that conviction, and this Court affirmed. ¹ This court's mandate was received in the district court on October 11, 1979. Seventy-six days later, on December 26, 1979, Diggs filed, pro se, a timely letter-motion requesting reduction of sentence pursuant to Fed.R.Crim.P. 35(b). At that time Diggs had been incarcerated for one year. ² Diggs' letter-motion, however, was not served on the government; nor was it docketed with the clerk until July 22, 1982--approximately two and one-half years later. Its whereabouts prior to that date are unknown. On July 22, 1982, the district court, without a hearing and without notice to the government, granted Diggs' motion, amending his sentence to "time served as of July 31, 1982." This order reduced Diggs' sentence to a three and one-half year prison term, one-third of that originally imposed, and would have resulted in his prompt release from prison.

The United States first received notice that Diggs had filed a rule 35(b) motion when it received the order reducing Diggs' sentence. The government promptly moved to stay and vacate that order. On July 26, the district court granted a stay, and on September 20, 1982, after briefing (defendant's brief was submitted by his trial counsel), the court vacated its July 22, 1982, order and reinstated Diggs original sentence. ³ In vacating the order, the court reasoned:

The court reluctantly concludes that the passage of time between the filing of the Rule 35 motion on December 26, 1979 and the Order of July 22, 1982, reducing the sentence to time served as of July 31, 1982, renders the action taken inappropriate under the circumstances. The court continues to believe, after consultation with the Chief Probation Officer, that petitioner's belated admission of his involvement in the offense, his change of attitude, his potential for rehabilitation, and his family situation militate favorably for an early release. However, this is now a matter for the Parole Commission to evaluate ....

The record discloses that Diggs and his attorney were sent a copy of the order vacating the sentence reduction. Neither Diggs nor his attorney filed a notice of appeal.

On February 4, 1983, once again proceeding pro se, Diggs filed what he styled as a motion for rehearing, and a petition for a writ of habeas corpus in which he questioned the propriety of the September 20, 1982 order. The court denied appellant's motion for rehearing on February 18, 1983, but stated it would entertain the habeas corpus petition. Treating the petition as a motion pursuant to 28 U.S.C. Sec. 2255 (1982), the court dismissed it on March 7, 1983. Diggs then filed, pro se, a timely notice of appeal, and we appointed counsel to represent him.

II. THE AVAILABILITY OF SECTION 2255 RELIEF

The government contends that Diggs' section 2255 application is nothing more than a disguised Rule 35(b) motion that raises the same legal issues raised previously. It argues that the ends of justice would not be served by permitting reconsideration of this same issue by successive application. In conjunction with this argument, the government points out that Diggs could also have raised his due process claim by appeal from the September 20, 1982 order, and it suggests that his failure to do so should bar consideration of a Sec. 2255 motion filed four and one-half months later.

A. Magnitude of Claimed Error

Under United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979), and Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962), it is clear that not all non-constitutional errors in criminal proceedings enable a prisoner to bring an action under 28 U.S.C. Sec. 2255 for relief; that statutory provision does not provide a substitute for appeal. Rather, an error of law does not provide a basis for collateral attack unless the claimed error constituted "a fundamental defect which inherently results in a complete miscarriage of justice." Addonizio, 442 U.S. at 185, 99 S.Ct. at 2240 (quoting Hill, 368 U.S. at 428, 82 S.Ct. at 471). The first issue before us, therefore, is whether the district court's allegedly erroneous ruling concerning its jurisdiction over Diggs' rule 35(b) motion is cognizable under section 2255.

We believe that, if the district court indeed erred in ultimately concluding that it lacked jurisdiction over the Rule 35(b) motion, a complete miscarriage of justice would result. The error would not be one that would be washed out by the course of subsequent trial proceedings. Rather, it would wrongly subject an individual whom the trial court, exercising arguably lawful authority, released from any form of custody, to six and a half years of imprisonment or parole. This is precisely the type of error for which Congress created section 2255. ⁴

B. Procedural Default

As we have noted, Diggs did not appeal the district court's vacatur of its earlier order granting his rule 35(b) motion. Although we have found no case law precisely on point, we have no doubt that, because Diggs could have appealed an original denial of his rule 35(b) motion for reduction of sentence, see United States v. Dansker, 581 F.2d 69 (3d Cir.1978), he could have appealed the vacatur. Hence, Diggs committed a "procedural default." The question before us, therefore, is whether this procedural default bars Diggs from collateral relief.

United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), stands as a barrier to section 2255 movants asserting errors that could have been raised at trial or on appeal. In that case the Supreme Court extended the rule of Wainright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), which applies to motions by state prisoners under 28 U.S.C. Sec. 2254, to motions by federal prisoners under 28 U.S.C. Sec. 2255. Accordingly, the Court there held that, at least as to errors committed at trial for which a rule of criminal procedure required contemporaneous objection, the failure to make such contemporaneous objection and the failure to assert "plain error" on appeal would bar the assignment of such error as grounds for section 2255 relief, unless cause for the "procedural default" could be shown and unless "actual prejudice" to the defendant could be shown to have resulted.

As we read it, Frady rested its use of a "cause and prejudice" standard on two factors. First, of course, was the public interest in the finality of criminal convictions....