Mateo v. U.S.

• Decision Date: 07 November 2002
• Docket Number: No. 02-1645.,02-1645.
• Citation: 310 F.3d 39
• Parties: Felix MATEO, a/k/a Manuel Lluberes, Johnny Rodriguez, Petitioner-Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 39

310 F.3d 39

Felix MATEO, a/k/a Manuel Lluberes, Johnny Rodriguez, Petitioner-Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 02-1645.

United States Court of Appeals, First Circuit.

Heard September 30, 2002.

Decided November 7, 2002.

James P. Bardsley and Law Office of Bardsley & Gray on Motion Attacking the Sentence Imposed by this Court, Pursuant to Section 2255 of Title 28 of the United States Code for petitioner.

James P. Bardsley and Law Office of Bardsley & Gray on Motion for the Issuance of a Certificate of Appealability Pursuant to F.R.A.P. 22(b) and Loc. R. 22.1 for petitioner.

James P. Bardsley and Law Office of Bardsley & Gray on Memorandum in Support of Motion for the Issuance of a Certificate of Appealability Pursuant to F.R.A.P. 22(b) and Loc. R. 22.1 for petitioner.

Michael J. Pelgro, Assistant United States Attorney, and Michael J. Sullivan, United States Attorney, on Memorandum in Opposition to Petitioner's Motion Under 28 U.S.C. § 2255 for the United States.

Before BOUDIN, Chief Judge, TORRUELLA and LIPEZ, Circuit Judges.

BOUDIN, Chief Judge.

Mateo pled guilty, pursuant to a written plea agreement, to various federal drug related offenses. The district court found that Mateo's offenses occurred at a time when he was the subject of an outstanding state warrant for probation violation. Under the Sentencing Guidelines, this equates to the commission of a federal crime while under sentence for another crime and raised Mateo's criminal history score and (in all likelihood) his ultimate federal sentence. See U.S.S.G. §§ 4A1.1(d), 4A1.2(m). After being sentenced, Mateo filed a notice of appeal and, while the appeal was pending, succeeded in obtaining a state court termination of the probation warrant nunc pro tunc to a time apparently before the alleged federal offenses.

On direct appeal, this court declined to consider the state court order. United States v. Mateo, 271 F.3d 11 (1st Cir.2001) ("Mateo I"). The court said that it was procedurally barred from addressing the nunc pro tunc order because, as the order was issued after the district court imposed its sentence, a proffer of the order was not made below. Id. at 15. The opinion continued, "[E]ven were we to consider the nunc pro tunc order, [Mateo] would not be advantaged," because under federal law "the district court takes the state-court record as it finds it." Id. at n. 4.

Mateo then petitioned under 28 U.S.C. § 2255 (2000), raising the same claim that was denied on direct appeal. The section 2255 motion was denied by the district court, which felt itself foreclosed under Mateo I from considering a collateral attack based on the vacated state warrant. Mateo now seeks a certificate of appealability ("COA") from this court under 28 U.S.C. § 2253 (2000).

Under section 2253, Mateo must make a "substantial showing of the denial of a constitutional right" before a COA can be granted. Here his habeas petition was denied based on the district court's interpretation of Mateo I's mandate, a nonconstitutional ground. Thus, section 2253 would appear on its face to bar us from issuing a COA. However, the Supreme Court has held that the statute permits a COA to be granted where a supposed antecedent procedural bar prevented the district court from reaching the constitutional claim — if (1) the soundness of the procedural ruling is debatable, and (2) the constitutional claim is also colorable. Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

The first requirement is easily met. The district court was right to be cautious; the mandate rule requires the district court to respect the appellate mandate. United States v. Rowe, 268 F.3d 34, 41-42 (1st Cir.2001). But here the main holding in Mateo I does not apply because the state court order now is part of the record. As for the further comment quoted above — that Mateo would not be advantaged even had we considered the nunc pro tunc order — we think this meant only that the district court had not erred as the record before it stood; the court in Mateo I should not be taken to have decided in a brief comment a very difficult set of substantive issues concerning the consequence of a post-sentencing vacation of a state sentence that affected the federal sentence.

Slack's second requirement — that there be a plausible constitutional claim before a COA can be granted — is a more serious problem for Mateo. Let us assume arguendo (we will return to this issue) that the later vacation of the state order renders Mateo's federal sentence vulnerable in a section 2255 proceeding, even though the sentencing judge acted properly on the record before her. Even so, it is hard to see why this raises a constitutional question, especially as Mateo makes no claim to us that the state court probation warrant was itself constitutionally defective.¹

Why Congress chose to limit COAs to constitutional defects is not entirely apparent. Cf. 28 U.S.C. § 2244(b)(2) (2000) (limiting second habeas petitions to new rule of constitutional law or newly discovered evidence); Jamison v. United States, 244 F.3d 44, 47 (1st Cir.2001). Any assumption that constitutional claims are always critically important, and non-constitutional ones always less so, would not wash; there are Fourth Amendment claims that turn on whether an object sits in the glove compartment of a car or in the trunk, see, e.g., New York v. Belton, 453 U.S. 454, 460 n. 4, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), and some non-constitutional rulings (say, a misreading of a guideline) that could double the time spent in jail. Still, this is the line that Congress has drawn.

Nevertheless, Mateo does assert that he has a constitutional claim, and it may not have been properly developed because the government invoked, and the district court accepted, the mandate-bar argument. Under these circumstances, the Seventh Circuit has adopted the view that, if the petitioner's constitutional claim does not appear utterly without merit after a "quick look," the COA can be granted and an incorrect procedural barrier removed, the matter then being remanded to give the district court first crack at the constitutional claim. Jefferson v. Welborn, 222 F.3d 286, 289 (7th Cir.2000); accord Evicci v. Commissioner of Corrections, 226 F.3d 26, 28 (1st Cir.2000).

This is a variation on Slack and one not presented or endorsed in that case. But the Seventh Circuit's approach reflects the same impulse as Slack to protect nascent constitutional claims; and it certainly does not bend the language of section 2253 any more than Slack itself. Cases from our sister circuits look in the same direction. Gibson v. Klinger, 232 F.3d 799, 802-03 (10th Cir.2000); Lambright v. Stewart, 220 F.3d 1022, 1026-27 (9th Cir.2000); cf. Hernandez v. Caldwell, 225 F.3d 435, 438 (4th Cir.2000); Roberts v. Sutton, 217 F.3d 1337, 1339-40 (11th Cir.2000).

On remand, Mateo may attempt to develop his supposed constitutional claim or offer only a non-constitutional claim or both. The prospect of a constitutional argument is needed to permit the COA to be granted; but once back in district court Mateo is free — on a first section 2255 motion — to proffer non-constitutional claims. Section 2255, which governs federal habeas, extends beyond constitutional claims. The critical language reads as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Admittedly, this language has been construed somewhat less generously than the words alone might suggest. The reference to "laws" and "otherwise subject to collateral attack" might at first seem to encompass any non-constitutional legal error, but the Supreme Court has limited claims of legal error — where neither a constitutional nor a jurisdictional claim is presented — to alleged errors that present "a fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); accord David v. United States, 134 F.3d 470, 474 (1st Cir.1998). We have ourselves held that "a guideline violation alone is not automatically a basis for relief" in a section 2255 proceeding. Cofske v. United States, 290 F.3d 437, 441 (1st Cir.2002); see also Knight v. United States, 37 F.3d 769, 772-73 (1st Cir.1994).

On remand, the district court will be faced with formidably interesting issues, assuming that no superceding constitutional claim is developed. Quite likely federal law controls the question whether the nunc pro tunc order of the Massachusetts court is to be given any effect for the purpose of the Sentencing Guidelines.² Cf. Jamison, 244 F.3d at 48 (discussing the...