Jones v. U.S., 88-15602

• Decision Date: 12 September 1990
• Docket Number: No. 88-15602,88-15602
• Citation: 914 F.2d 262
• Parties: Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Carl Eugene JONES, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 262

914 F.2d 262

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Carl Eugene JONES, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 88-15602.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 17, 1990.

Decided Sept. 12, 1990.

Before LIVELY, ^* FLETCHER and REINHARDT, Circuit Judges.

MEMORANDUM ^**

Carl Eugene Jones appeals the district court's dismissal of his 28 U.S.C. Sec. 2255 motion to vacate his sentence. Jones raises several challenges to his conviction for conspiring to manufacture methamphetamine, unlawfully using a telephone to further a conspiracy, and being a felon in possession of firearms.

FACTS AND PROCEEDINGS BELOW

In November 1985, following a jury trial in federal court, Jones was convicted of conspiring to manufacture methamphetamine (21 U.S.C. Sec. 846), unlawfully using a telephone to further a conspiracy (21 U.S.C. Sec. 843) and being a felon in possession of firearms (18 U.S.C. Sec. 1202(a)(1)). ¹ The United States District Court sentenced Jones to six years incarceration and five years probation. Jones appealed his conviction, which was affirmed by another panel of this court in an unpublished memorandum. In his direct appeal, Jones challenged only the district court's failure to permit the defendants to cross-examine a witness and the sufficiency of the jury instructions on the telephone charge.

According to the district court judge, Jones subsequently filed almost two dozen post-conviction motions (e.g., seeking to correct the transcript, to grant a new trial, to correct the sentence) and 30 letters to the court. He additionally filed three pro se habeas corpus petitions, which among other matters challenged the district court's denial of bail pending trial, alleged in a general fashion that his conviction was based on perjured testimony, and claimed ineffective assistance of counsel. On November 22, 1988, the district court denied with prejudice all motions, except that of ineffective assistance of appellate counsel, which was denied without prejudice and with leave to amend. Jones filed an amended petition, which the court on December 16, 1988 denied with prejudice. Jones appeals.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. Sec. 1291 to review a district court's denial of a petition for relief brought pursuant to 28 U.S.C. Sec. 2255. We apply a de novo standard of review. United States v. Popoola, 881 F.2d 811, 812 (9th Cir.1989).

The government challenges this court's jurisdiction because Jones filed no timely notice of appeal from the district court's final judgment. The relevant chronology is as follows. On November 22, 1988, the district court dismissed all of Jones's claims but one. By granting Jones leave to amend his claim of ineffective assistance of counsel, the court's order was not final. On December 2, 1988, Jones filed a notice of appeal from that November order, which another panel of this court dismissed on April 19 as an appeal from a nonfinal judgment. In the meantime, the district court had issued the final judgment. However, Jones never filed an appeal from that December 16 order nor notified this court of its existence. On April 24, referring this court to the December 16 final judgment, Jones moved for reconsideration of its dismissal issued the previous week. On July 26, 1989, the panel granted the motion for reconsideration and reinstated Jones's appeal. ² Although as a general rule one panel of an appellate court will not reconsider question which another panel has decided on a prior appeal in the same case, the law of the case doctrine does not apply to the question of our jurisdiction to consider an appeal. We must review independently a challenge to our jurisdiction. Duran v. City of Douglas, No. 89-15236, Slip op. 5595, 5600-5601 (9th Cir. June 4, 1990).

The statutory scheme governing appeals in habeas cases is precise. A federal prisoner appealing a dismissal of a habeas corpus petition must file the notice of appeal within 60 days of a final judgment, although the district court may, upon a showing of good cause, extend the period an additional 30 days. These limits are jurisdictional; they apply even if the petitioner is not represented by counsel, and they may not be waived by the court. See 28 U.S.C. Sec. 2255, referring to 28 U.S.C. Sec. 2107 (time for appeal to court of appeals); Fed.R.App.P. 4(a)(1) (in a civil case where the United States is a party, the notice of appeal must be filed within sixty days after the date of entry of a final judgment); U.S. v. Angelone, 894 F.2d 1129 (9th Cir.1990) (rejecting petitioner's appeal as untimely), Kapsalis v. Wilson, 380 F.2d 365 (9th Cir.1967) (same). ³ An order is final when it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 232 (1945). There is no doubt that the district court's order of November 22 was not final. See Fed.R.Civ.P. 54(b) (absent an explicit directive by the district court that a partial judgment should be entered, any order that adjudicates fewer than all of the claims or the rights of fewer than all the parties shall not terminate the action); Proud v. United States, 704 F.2d 1099 (9th Cir.1983) (order dismissing complaint with leave to amend was not final and, consequently, not appealable). Therefore, under the governing statutes, Jones failed to present a valid appeal.

The result of applying this strict scheme to the present appeal, however, is unduly harsh. We rely on a line of cases to find that Jones fits within an exception to the finality rule. In Anderson v. Allstate Insurance Co. 630 F.2d 677 (9th Cir.1980), this court held that an interlocutory order may be treated as a final order for purposes of appeal when that portion of the case that remained in the district court subsequently has been terminated. In other words, if a party files a notice of appeal from a judgment that is not final at the time the notice is filed but which later is reduced to final judgment, the jurisdictional defect is "cured," and the appellate court may assert jurisdiction. Later cases relying on Anderson to find that a premature notice of appeal was perfected by subsequent events typically have dealt with one of two situations: (1) multiple defendants, judgments which were final only as to some defendants when the notice of appeal was filed, e.g. Unioil, Inc. v. E.F. Hutton & Co., Inc., 809 F.2d 548 (9th Cir.1986) cert. denied, 484 U.S. 822 (1987); Walsh v. United States, 672 F.2d 746 (9th Cir.1982); Baker v. Limber, 647 F.2d 912 (9th Cir.1981) ⁴ or (2) a notice of appeal that was filed after an order was issued, but before a judgment or order was filed. DHL Cor. v. C.A.B., 659 F.2d 941, 944, n. 4 (9th Cir.1981) However, the principles behind this exception--the desire to give a practical rather than a technical construction of the finality rule, and the recognition that the danger of piecemeal litigation is no longer present once nothing else remains in the lower court--apply to the present situation.

When the appellant is a criminal defendant, additional policy considerations support construing the finality rule in a more lenient fashion. ⁵ This is reflected by Fed.R.Crim.P. 52(a) which states that "[a]ny error, defect or irregularity or variance which does not affect substantive rights shall be disregarded." In U.S. v. Wade, 841 F.2d 331 (9th Cir.1988), we applied that rule to find that a premature notice of appeal from a conviction, filed after the verdict but before a sentence, was a mere technical irregularity. See also Lemke v. United States, 346 U.S. 325 (1953) (Court upheld validity of a notice of appeal filed after sentencing but before the formal entry of a judgment; premature filing was harmless error); United States v. Cortes, 895 F.2d 1245 (9th Cir.1990) (notice of appeal from conviction filed while notice for a new trial was pending; eschewing the "draconian" approach written in the civil appeals rules and desiring to avoid placing an "unacceptable trap for the unwary appellant," court held that notice of appeal was effective, despite pendency of motion for new trial) cert. denied 110 S.Ct. 2191. We find that Jones's premature filing of the notice of appeal similarly was a technical irregularity that, under the circumstances of this case, does not bar the present appeal.

ANALYSIS OF MERITS

The district court judge denied Jones Sec. 2255 motion without granting a hearing. This summary disposition is appropriate only when the motion and the record of the case "conclusively" show that the prisoner is not entitled to relief. 28 U.S.C. Sec. 2255; Baumann v. United States, 692 F.2d 565, 571 (9th Cir.1982). The petitioner need not detail his evidence, but mere conclusory statements do not justify a hearing. Id. at 571, Wagner v. United States, 418 F.2d 618, 621 (9th Cir.1969). If any of Jones's challenges were plausible, we must remand his Sec. 2255 petition to the district court for an evidentiary hearing. Baumann, 692 F.2d at 573.

On appeal, Jones raises several challenges. At each stage of his quest for relief, Jones has raised different objections, but there appears to be a core theme; various government officers lied about the chemicals that are precursors of methamphetamine wand the chemicals that Jones ordered. Jones's challenges are addressed in turn.

1. Failure to grant an evidentiary hearing and failure to suppress evidence.

Jones alleges that government officers lied in the affidavits they submitted to obtain search warrants; the admission at trial of any evidence obtained pursuant to those warrants, he argues, violated his fourth amendment rights. Jones also...