Lozada v. U.S.

• Decision Date: 07 March 1997
• Docket Number: No. 96-2887,96-2887
• Citation: 107 F.3d 1011
• Parties: Marcus LOZADA and Jose Orlando Mieles, Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 1011

107 F.3d 1011

Marcus LOZADA and Jose Orlando Mieles, Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.

No. 96-2887.

United States Court of Appeals, Second Circuit.

Argued Jan. 7, 1997.

Decided March 7, 1997.

Christine E. Yaris, New York City, for petitioners-appellants.

Joann Navickas, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty., David C. James, Tanya Y. Hill, Asst. U.S. Attys., Brooklyn, N.Y., on the brief), for respondent-appellee.

Before: NEWMAN, Chief Judge, FEINBERG and McLAUGHLIN, Circuit Judges.

JON O. NEWMAN, Chief Judge:

Pending before us is a motion that occasions our consideration of several procedural questions arising in connection with the recently enacted requirement of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or "the Act"), Pub.L. No. 104-132, 110 Stat. 1214, for a "certificate of appealability" ("COA") as a condition of appealing the denial of an application for collateral attack upon a state or federal conviction under 28 U.S.C. §§ 2254, 2255. These issues are: (1) whether the AEDPA limits the grounds on which a prisoner may appeal the denial of a motion under section 2255, (2) if so, whether the AEDPA may be applied where a section 2255 motion is filed before the effective date of the Act and the notice of appeal from the denial of the motion is filed after the effective date, (3) if so, whether the motion for a COA to appeal the denial of a collateral attack upon a conviction (either under section 2254 or 2255) can and must be initially presented to a district judge, and (4) if so, how a court of appeals is to proceed after the denial of a COA by a district court.

These issues arise on a motion by Marcus Lozada and Jose Orlando Mieles to "dispense with" a COA in connection with their appeal from an order of the District Court for the Eastern District of New York (Reena Raggi, Judge) that denied their motions under section 2255 to vacate their sentences for drug conspiracy convictions. We conclude that the AEDPA limits the grounds on which section 2255 denials may be appealed, that the AEDPA's COA requirement may be validly applied to section 2255 motions filed before the Act's effective date and the notice of appeal from the denial of the motion is filed after the effective date, and that a motion for a COA (in either a section 2254 or a section 2255 case) can be considered by a district court and must be initially presented to a district court. We also outline the procedure that we will follow in considering whether to issue a COA after denial by a district court.

Background

Lozada and Mieles filed their section 2255 motions, challenging their drug conspiracy convictions, in 1992. The AEDPA became effective on April 24, 1996. The District Court denied their motions on September 27, 1996, and simultaneously denied a COA. The Court subsequently denied their motion for reargument, rejecting their contention that imposition of a COA requirement was unconstitutional. After filing a notice of appeal, movants filed the pending motion to dispense with a COA. Upon the argument of the motion, we asked the parties to submit, and have now received, supplemental letter briefs.

Discussion

Section 102 of the AEDPA amends 28 U.S.C. § 2253 to add, among other provisions, the following language:

(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from--

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or

(B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.

(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).

I. Scope of Appeal

The scope of habeas corpus under section 2254 to challenge custody pursuant to a state court judgment extends, in terms, to a claim by a person "that he is in custody in violation of the Constitution or laws or treaties of the United States," 28 U.S.C. § 2254(a), although the Supreme Court has stated that a state court judgment may be collaterally attacked in federal court only on the ground that a constitutional right has been denied. See Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 860, 122 L.Ed.2d 203 (1993). The scope of a motion collaterally attacking a federal court sentence under section 2255 is broader, extending to a claim "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255.

The AEDPA does not purport to limit the substantive grounds on which a district court may grant relief under section 2255. However, section 102 of the AEDPA limits to constitutional claims the grounds on which a federal prisoner may appeal from the denial of a section 2255 motion. The limitation is accomplished by prohibiting an appeal of an order denying a section 2255 motion unless a COA is issued, 28 U.S.C. § 2253(c)(1)(B), and authorizing a COA "only if the applicant has made a substantial showing of the denial of a constitutional right," id. § 2253(c)(2). ¹ See Hohn v. United States, 99 F.3d 892 (8th Cir.1996) (COA denied for lack of claim of denial of constitutional right); see also United States v. Orozco, 103 F.3d 389, 392 (5th Cir.1996) (AEDPA will limit appeals in section 2255 cases).

II. Application of Appeal-Limiting Provision to Pending Section 2255 Motions

The movants do not dispute that the AEDPA limits the scope of an appeal from the denial of a section 2255 motion to constitutional claims. On the contrary, their recognition of the limiting effect of the AEDPA on the scope of such appeals is the basis for their contention that the Act may not be validly applied to a section 2255 motion filed before the effective date of the Act. In their view, the narrowing of appellate jurisdiction by eliminating appeals based on such section 2255 grounds as "jurisdictional error" or "error [that] resulted in a complete miscarriage of justice or in a proceeding inconsistent with the rudimentary demands of fair procedure," Femia v. United States, 47 F.3d 519, 525 (2d Cir.1995) (citations and quotations omitted), is the reason why this aspect of the AEDPA may not be given retrospective application.

We have previously encountered contentions that provisions of the AEDPA may not be given retrospective application, and have endeavored to resolve such claims in light of the Supreme Court's latest explication of its retroactivity jurisprudence in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). The Court there stated that generally procedural changes may be applied to pending cases without imposing the sort of "genuinely" retroactive effect that can be imposed, if at all, only if Congress has expressly so provided. Id. at 277, 114 S.Ct. at 1503.

In conformity with Landgraf, we have applied the AEDPA's COA requirement to a section 2254 petition filed before the Act's effective date, Reyes v. Keane, 90 F.3d 676, 679-80 (2d Cir.1996), but have not applied the AEDPA's one-year statute of limitations to a section 2254 petition as to which the one-year period had expired before the effective date of the Act, id. at 678-79, or the AEDPA's more deferential standard for assessing state court consideration of constitutional claims to a denial of competent counsel occurring prior to the effective date of the Act, Boria v. Keane, 90 F.3d 36, 37 (2d Cir.1996) (opinion on rehearing).

We agree with the Eleventh Circuit that application of whatever limiting effect the AEDPA may have on the scope of appeals of denials of section 2255 motions results in the sort of procedural change that does not encounter retroactivity objections. See Hunter v. United States, 101 F.3d 1565 (11th Cir.1996) (in banc). The movants plainly had no settled expectation of an appeal without the requirement of a COA either at the time they committed their crimes or at the time they suffered the denial of rights of which they now seek to complain. Id. at 1571-73; see Orozco, 103 F.3d at 392. ²

Accordingly, the motion to dispense with a COA must be denied. That ruling obliges us to consider the further issue as to whether a district court is the appropriate court to issue a COA.

III. District Court Issuance of a Certificate of Appealability

The dispute as to whether a district court has authority to issue a COA arises because of an ambiguity in the language Congress used in section 102 of the AEDPA to simultaneously amend both section 2253 of Title 28 and Rule 22 of the Federal Rules of Appellate Procedure. Amended section 2253, which explicitly applies to both section 2254 and section 2255 petitions, prohibits an appeal "[u]nless a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c)(1) (as amended) (emphasis added). The emphasized words could mean either "a circuit justice or a circuit judge" or "a circuit justice and either a circuit or a district judge." The grammatical issue is whether "circuit" modifies only "justice" or both "justice" and "judge." Amended Rule 22, which is captioned "Habeas corpus and section 2255 proceedings," provides:

In a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of appealability pursuant to section 2253(c) of title 28, United States Code. If an appeal is taken by the applicant, the district judge who rendered...