Jones v. U.S.

• Decision Date: 29 August 2000
• Docket Number: No. 97-8958,97-8958
• Parties: (11th Cir. 2000) Charles Larry JONES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1251

224 F.3d 1251 (11th Cir. 2000)

Charles Larry JONES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 97-8958.

United States Court of Appeals,

Eleventh Circuit.

Aug. 29, 2000.

Sept. 11, 2000.

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Georgia. (No. 97-00041-3-CV-RLV), Jack T. Camp, Judge.

Before TJOFLAT, WILSON and FLETCHER^*, Circuit Judges.

WILSON, Circuit Judge:

Charles Larry Jones, a federal prisoner convicted on drug charges, appeals the denial of his motion under 28 U.S.C. 2255 to vacate, set aside, or correct his sentence. As a threshold matter, we rule that we will expand Jones's certificate of appealability (COA) to include issues beyond those certified by the district court, especially when, as here, we have received a specific request directing us to the particular issue the petitioner wishes to appeal. Because Jones has shown that his counsel rendered ineffective assistance by failing to move for suppression of evidence and failing to object to a general sentence, we remand for further proceedings to determine whether his counsel's ineffectiveness deprived Jones of a fair trial, and for resentencing if necessary.

BACKGROUND

The Underlying Criminal Case

On July 14, 1988, the government obtained an investigative warrant to tap Jones's phone. Thereafter, the government intercepted and taped conversations between Jones and others until August 18, 1988.¹ Acting on information from the intercepted conversations, the government arrested Jones and several other alleged conspirators on August 18, 1988. Nothing in the trial court record shows that the tapes from the tapped phone conversations were sealed pursuant to a written sealing order. However, it appears that on September 19, 1988, a judge orally granted a request to seal the tapes.² This thirty-one-day delay became significant in light of a development in Supreme Court precedent occurring while Jones's case was pending.³

This development pertained to 18 U.S.C. 2518(8)(a)'s requirement that wiretap tapes be sealed "immediately" upon expiration of the order authorizing the wiretap. When Jones was arrested, the law of this circuit was that a court would not grant a motion to suppress based on a delay in sealing wiretap evidence, unless the defendant could show prejudice or that the integrity of the recordings was disturbed.⁴ On October 10, 1989, the Supreme Court granted certiorari to resolve an inter-circuit conflict regarding whether this "prejudice" requirement was appropriate.⁵ Over one month after the grant of certiorari, Jones's counsel moved to suppress the wiretap evidence. The motion mentioned neither the delay in sealing the tapes nor the grant of certiorari.⁶ The magistrate judge recommended denying the motion to suppress.

The tapes were entered into evidence and played to the jury at trial. The jury convicted Jones on four counts: conspiring to make and distribute methamphetamine, manufacturing a precursor of methamphetamine called phenyl-2-propanone, and two counts of attempting to make methamphetamine. The district court imposed a general sentence of 360 months' imprisonment on all four counts. Jones's counsel did not object to the general nature of the sentence.

Jones's counsel filed a notice of appeal on April 30, 1990-the same day the Supreme Court issued its opinion in United States v. Ojeda Rios.⁷ The record does not reflect that Jones's counsel raised on appeal the change in law regarding suppression of wiretap evidence. This court affirmed Jones's conviction without mentioning the delay in sealing the wiretap evidence. See United States v. Jones, 940 F.2d 673 (1991), cert. denied, sub nom. Newsome v. United States, 502 U.S. 1076, 112 S.Ct. 977, 117 L.Ed.2d 141 (1992).

The 2255 Proceedings

Jones moved under 28 U.S.C. 2255 to vacate, set aside, or correct his sentence. Among the grounds for Jones's motion were that his attorney ineffectively failed to (1) move to suppress wiretap evidence; (2) object to an unlawful general sentence; and (3) object to Jones's sentence being enhanced based on a type of methamphetamine for which there was no proof Jones had made, had attempted to make, or had conspired to manufacture. The district court denied Jones's 2255 motion. Jones appealed. The district court certified only two issues for appeal:

Whether the defendant was deprived of the effective assistance of counsel by (1) his attorney's failure to require proof as to the kind of methamphetamine for which the defendant was to be sentenced and (2) his attorney's failure to object to the general sentence imposed by the court.

Jones then asked this court to expand the COA to cover the wiretap issue.

DISCUSSION

Certificate of Appealability (COA)

As a threshold matter, we must resolve whether we will expand our review beyond the two issues certified for appeal by the district court. Jones appealed from the denial of his 2255 motion on August 27, 1997. His appeal is therefore governed by the COA requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Slack v. McDaniel, --- U.S. ----, 120 S.Ct. 1595, 1600, 146 L.Ed.2d 542 (2000) (when appeal is initiated after April 24, 1996, AEDPA's appellate provisions apply).

Under the AEDPA, a petitioner must obtain a COA before he can appeal the denial of a 2255 motion. See 28 U.S.C. 2253(c)(1)(B). The COA must indicate specific issues for which the appellant "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2); see 28 U.S.C. 2253(c)(3). Our review is limited to the issues specified in the COA. See Murray v. United States, 145 F.3d 1249, 1250 (11th Cir.1998). Therefore, unless Jones succeeds in expanding the district court's COA, we will not consider Jones's uncertified appellate claim that he was deprived of the effective assistance of counsel with respect to the suppression of wiretap evidence.

The COA process begins in the district court when the prisoner files either a notice of appeal or a request for a COA. See Fed.R.App.P. 22(b); 11th Cir.R. 22-1; Edwards v. United States, 114 F.3d 1083, 1084 (11th Cir.1997). If the district court declines to issue a COA, this court can issue one pursuant to Fed.R.App.P. 22(b)(2). Thus, "[u]nder the plain language of the rule, an applicant for the writ gets two bites at the appeal certificate apple: one before the district judge, and if that one is unsuccessful, he gets a second one before a circuit judge." Hunter v. United States, 101 F.3d 1565, 1575 (11th Cir.1996) (en banc), partially overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). An appellant can seek this "second bite" by expressly requesting this court to issue a COA, or by filing a notice of appeal. See Fed.R.App.P. 22(b)(2).

Therefore, the rules provide that a bare notice of appeal can serve as a request for us to revisit a district court's complete refusal to issue a COA. But the rules do not expressly cover the situation where the district court issues not a total denial, but a partial denial, by granting a COA on less than all the issues the petitioner wishes to appeal. Does a bare notice of appeal suffice as a request to broaden the scope of the certificate?

The circuits are divided on whether an appellant seeking to expand a COA may do so simply by filing a notice of appeal,⁸ or whether he or she must request a broader COA by presenting the uncertified issue to the circuit court's attention explicitly.⁹ The government argues that the Eleventh Circuit falls in the latter category, citing Tompkins v. Moore, 193 F.3d 1327 (11th Cir.1999), petition for cert. filed, --- U.S.L.W. ---- (U.S. June 12, 2000) (No. 99-10113). There we suggested that AEDPA petitioners could expand a COA only by filing a request with this court before briefing:

An application to expand the certificate must be filed promptly, well before the opening brief is done. Arguments in a brief addressing issues not covered in the certificate, including any expansion granted by the court of appeals, will not be considered as a timely application for expansion of the certificate; those issues simply will not be reviewed.

Id. at 1332. But because Tompkins involved pre-AEDPA law, its statements regarding AEDPA procedure are dicta.

The "explicit request" requirement for expanding a COA has its pros and cons. It furthers the usefulness of the COA by directing the parties' attention at an early stage of the proceedings to the vital issues. On the other hand, an appellant who receives a partial COA can be actually worse off than one whose application for a COA is denied in full by the district court; when a COA application is totally denied, we treat the notice of appeal as an application for this court to issue a COA and consider de novo whether to grant one. Cf. Fed.R.App.P. 22(b)(2); Hunter, 101 F.3d at 1575.

At any rate, we need not decide the issue today, for Jones has satisfied the more stringent standard by presenting this court with an explicit request to broaden his COA. He did so by moving in this court for an enlargement of time to file an application for a COA covering all the issues raised in his 2255 motion. A judge of this court denied the motion and directed Jones to limit his brief to the two issues certified for appeal. Jones moved for panel reconsideration of the single-judge denial. Attached to his motion was an application to amend the COA, specifically presenting the additional claim Jones wishes to present before this court today: that he was denied effective assistance of counsel with respect to the suppression of wiretap evidence.

The government moved to dismiss the portions of Jones's appeal that addressed uncertified issues. A two-judge panel of this court ordered the government's motion and Jones's motion for reconsideration to be carried with the case. Later, a three-judge pan...