Jamison v. U.S.

• Decision Date: 08 January 2001
• Docket Number: No. 99-2217,99-2217
• Parties: (1st Cir. 2001) AARON D. JAMISON, Petitioner, v. UNITED STATES OF AMERICA, Respondent. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 44

244 F.3d 44 (1st Cir. 2001)

AARON D. JAMISON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 99-2217

United States Court of Appeals For the First Circuit

Heard January 8, 2001

Decided March 29, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Veronica J. White, by appointment of the court, for petitioner.

Margaret D. McGaughey, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, was on brief for the United States.

Before Torruella, Chief Judge, Boudin and Lynch, Circuit Judges.

BOUDIN, Circuit Judge.

This case involves the "second and successive" language added to the habeas statute by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, §§ 105-06, 110 Stat. 1214, 1220-21 (1996) (codified at 28 U.S.C. §§ 2244, 2255). Aaron Jamison was indicted for possessing, and conspiring to possess, crack cocaine with intent to distribute. 18 U.S.C. § 2 (1988); 21 U.S.C. §§ 841(a)(1) & (b)(1)(B), 846 (1988 & Supp. V 1993). On May 19, 1994, Jamison and a co-defendant were convicted by a jury on both counts. Thereafter, Jamison's trial counsel withdrew and new counsel was appointed to represent Jamison.

On May 19, 1995, the district court sentenced Jamison to 236 months' imprisonment. Because of the quantity of drugs and adjustments upward for leadership of criminal activity, U.S.S.G. § 3B1.1(a) (1994), and for obstruction of justice, U.S.S.G. § 3C1.1, Jamison had an offense level of 34. The district court found that four pertinent prior convictions put Jamison in criminal history category IV. U.S.S.G. § 4A1.1. The resulting guideline range was 210 to 262 months. Thus, the sentence fell in the middle of the guideline range (and within the basic statutorily prescribed range of between five and forty years, 21 U.S.C. § 841(b)(1)(B)).

Jamison filed a timely appeal but the appeal was later dismissed for want of prosecution; the appeal of his co-defendant was rejected on the merits. United States v. Martin, 77 F.3d 460, 1996 WL 73363, at *1 & n.1 (1st Cir. 1996) (unpublished opinion). Thereafter, in 1997, Jamison filed a motion under 28 U.S.C. § 2255 (Supp. II 1996), claiming ineffective assistance of counsel on the basis of both his trial counsel's handling of the trial and his appellate counsel's failure to pursue the appeal.

The district court ultimately denied the section 2255 motion because factual allegations needed to support Jamison's complaints were unsworn, United States v. LaBonte, 70 F.3d 1396, 1412-13 (1st Cir. 1995), rev'd on other grounds, 520 U.S. 751 (1997), and, alternatively with respect to the trial-counsel claims, because those unsworn allegations did not show ineffective assistance at trial, Strickland v. Washington, 466 U.S. 668, 687 (1984). However, when Jamison sought a certificate of appealability from this court, 28 U.S.C. § 2253(c), this court granted Jamison's request for a certificate but limited it to the alleged failure of his appellate counsel to pursue his original appeal.

In an unreported order dated March 4, 1998, this court ruled on the appeal. The court disregarded the lack of sworn factual allegations on grounds not here relevant; and, on the claim that appellate counsel had been ineffective, the court remanded the case to develop the record as to whether there was an acceptable explanation for the failure of Jamison's attorney to pursue his appeal. On remand, after receipt of an affidavit from Jamison's appellate attorney, the government consented to reinstatement of Jamison's direct appeal.

On review of the reinstated appeal, this court rejected on the merits Jamison's claims relating to the determination of drug quantity. United States v. Jamison, 181 F.3d 81, 1999 WL 525942, at *2-*3 (1st Cir. 1999) (per curiam) (unpublished opinion). The court declined to address Jamison's further claim that his section 2255 motion had been improperly denied so far as it attacked the competency of his trial counsel. This court said that review of that denial had already been sought, that the court of appeals had limited the certificate of appealability to issues concerning the effectiveness of appellate counsel, and that the claim of ineffectiveness of trial counsel was now foreclosed. Id. at *2.

In November 1999, Jamison began the proceeding that is now before us by making a pro se request for this court's permission to file a second section 2255 motion. 28 U.S.C. §§ 2244(b)(3), 2255. He claimed that after this court affirmed his conviction and sentence on the reinstated direct appeal, one of the New York state convictions that had been used in computing his criminal history was invalidated; he said that, without it, his criminal history category (and guideline range) would have been lower. He did not say that he satisfied the gatekeeping requirements for a second motion, 28 U.S.C. §§ 2244(b)(2), 2255.

After obtaining further information from Jamison, this court appointed counsel and obtained briefing and argument on three questions: whether the motion Jamison sought to file was a second motion, "given that the first petition was used to reinstate a forfeited appeal"; whether the second motion had satisfied the gatekeeping restrictions; and (assuming the merits were reached) whether resentencing was warranted because the state conviction in question should be treated as expunged or invalidated for purposes of the Sentencing Guidelines, U.S.S.G. §§ 4A1.2(j), 4A1.2 notes 6 & 10.

As now amended, sections 2244 and 2255 forbid a district court from entertaining a "second or successive" motion under section 2255 without permission from the court of appeals; and to grant permission, the appeals court must find that the motion satisfies one of two gatekeeper requirements: (1) newly discovered evidence that would establish innocence of the offense or (2) a new and previously unavailable rule of constitutional law made retroactive to cases on collateral review by the Supreme Court. 28 U.S.C. §§ 2244(b)(2), 2255. In short, the current habeas statute imposes a one-bite rule with a pair of narrow but important exceptions.

Jamison concedes, correctly we think, that the exceptions do not apply. He invokes no new rule of constitutional law, and an attack on the sentence, even if sound, does not show innocence of the crime, see In reDavenport, 147 F.3d 605, 609-10 (7th Cir. 1998). However, Jamison argues that his motion should not be viewed as a "second" motion because his first one primarily served to reinstate his direct appeal--the trial-counsel claims in his original motion having been denied, Jamison argues, on "technical" grounds. Further, Jamison points out that his claim of error as to criminal history could not even have been presented in the original section 2255 motion because the New York indictment at issue was not dismissed until June 3, 1999, and the case itself not sealed until September 15, 1999.

The first argument is foreclosed by a combination of fairly recent First Circuit precedent and the fact that Jamison's original trial-counsel claims were in fact not rejected on purely technical grounds. In Pratt v. United States, 129 F.3d 54, 60-63 (1st Cir. 1997), cert. denied, 523 U.S. 1123 (1998), we considered and rejected a similar claim that a first motion should not "count" where it served merely to reinstate a direct appeal. Since then, the Supreme Court decided in Stewart v. Martinez-Villareal, 523 U.S. 637, 643-45 (1998), largely on policy grounds, to treat what was formally a second motion as if it were a first motion.

However, in Stewart, which was a capital case, an original claim of incompetency to be executed had been dismissed on "technical procedural grounds" (prematurity). Stewart, 523 U.S. at 643-45. Pratt explicitly anticipated such a ruling and distinguished the case. 129 F.3d at 60. In this case, despite Jamison's statements to the contrary, Jamison's original claims as to counsel's ineffective assistance at trial were rejected on the merits;¹ and, of course, after our remand the district court reinstated the direct appeal and thereby granted relief on the merits for Jamison's claim as to counsel's failure to pursue the appeal.

Where a first motion is used to reinstate a direct appeal, reinstatement is unquestionably a grant of collateral relief on the merits and any later motion attacking the same conviction and sentence is, in ordinary usage, a second or successive motion. To discard Congress's literal language regarding the treatment of such motions is a step to be taken with great caution, especially where (as here) a strict reading accords with Congress's aim to restrict collateral attacks, seeSustache-Rivera v. United States, 221 F.3d 8, 13 (1st Cir. 2000), cert. denied, 69 U.S.L.W. 3617 (U.S. Mar. 19, 2001) (No. 00-6740). Still, as Stewart and prior habeas decisions teach, see, e.g., McCleskey v. Zant, 499 U.S. 467, 483-84 (1991), literal language is not everything, and some fine tuning may avoid unfairness without compromising Congress's basic aim.

Where an original motion reinstated a direct appeal, three circuits have held that such a motion should not count as a "first" motion, one over a strong dissent. In re Goddard, 170 F.3d 435, 438 (4th Cir. 1999) (divided panel); Shepeck v. United States, 150 F.3d 800, 801 (7th Cir. 1998) (per curiam); United States v. Scott, 124 F.3d 1328, 1330 (10th Cir. 1997) (per curiam). Meanwhile, if Pratt is counted, two circuits have declined to follow such an automatic rule. United States v. Orozco-Ramirez, 211 F.3d 862, 870 (5th Cir. 2000); Pratt, 129 F.3d at 60-63.

There are policy arguments both ways, and the key problem is a complex one: where the original motion seeks to reinstate a direct appeal and also makes other substantial claims cognizable on habeas, there is arguably a risk that the natural priority likely to be given to the reinstatement claim could lead...