Muniz v. U.S.A.

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-3571
• Citation: 236 F.3d 122
• Parties: (2nd Cir. 2001) MATHILDE MUNIZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent
• Court: U.S. Court of Appeals — Second Circuit

Page 122

236 F.3d 122 (2nd Cir. 2001)

MATHILDE MUNIZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Docket No. 00-3571

August Term, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Submitted: November 30, 2000

Decided: January 02, 2001

Petitioner moves for leave to file a "second or successive" petition for collateral relief under 28 U.S.C. § 2255. We hold that the present petition is not, in fact, a "second or successive" petition within the meaning of the statute, but is properly characterized as a "first" petition, since her previous petition was not adjudicated on the merits.

Motion denied as unnecessary and petition transferred to the District Court for consideration as a first petition.

RANDOLPH Z. VOLKELL, North Bellmore, NY, by appointment of the Court, for Petitioner.

CHRISTINE CHI, Assistant United States Attorney (Mary Jo White, United States Attorney for the Southern District of New York, on the brief), New York, NY, for Respondent.

Before: CABRANES, PARKER, and STRAUB, Circuit Judges.

PER CURIAM:

Petitioner Mathilde Muniz moves pursuant to 28 U.S.C. §§ 2244(b)(3)(A) & 2255 for an order authorizing the District Court to consider a "second or successive" petition¹ for postconviction relief under 28 U.S.C. § 2255. As it happens, however, Muniz's instant petition is not, in fact, a "second or successive" petition within the meaning of §§ 2244(b)(3)(A) & 2255 at all. Rather, since her previous petition was not adjudicated on the merits but rather was dismissed on technical procedural grounds, we hold that the instant petition properly is characterized as a first petition. We therefore deny Muniz's motion for leave to file a second or successive petition as unnecessary and transfer her petition, pursuant to 28 U.S.C. § 1631, to the district court to be considered as a first petition.

BACKGROUND

Following a plea of guilty, Muniz was convicted in April 1991 of conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. § 846 and sentenced to 170 months' imprisonment. On March 25, 1997, Muniz filed a pro sepetition to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255, asserting, inter alia, that her plea of guilty was entered involuntarily, that she was denied effective assistance of counsel, and that her sentence was based on an amount of crack without a specific finding regarding the weight of that crack. For over one year, Muniz's petition lay dormant "[f]or various unfortunate" (but unspecified) reasons, before the District Court (Kevin T. Duffy, Judge) finally denied her petition on June 15, 1998, as time-barred by the one-year limitations period that was newly enacted into law by Section 105 of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Muniz v. United States, 97 Civ. 2105 (S.D.N.Y. June 15, 1998). The District Court relied upon Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997), to conclude that since Muniz's conviction became final prior to the April 24, 1996, effective date of AEDPA, she was required to file her § 2255 petition within a "reasonable time" after that date for her petition to be considered timely, and that Muniz's delay in filing her § 2255 petition was not reasonable under the circumstances of her case.

Less than ten days after the District Court's disposition, however, we made clear that notwithstanding dicta suggesting the contrary in Peterson, all prisoners whose convictions became final prior to the effective date of AEDPA would be entitled to a full year after that date within which to file habeas corpus or § 2255 petitions. See Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998) (petitions for habeas corpus under 28 U.S.C. § 2254); Mickens v. United States, 148 F.3d 145 (2d Cir. 1998) (petitions to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255). We noted that "[i]n the light of hindsight," Peterson's "reasonable time" dictum failed to provide clear guidance to prisoners and district courts, and that having been decided approximately 9 ½ months after the effective date of AEDPA, Peterson provided "little useful notice to prisoners that less than the one-year period [after that date] would be allowed." Ross, 150 F.3d at 101, 102. Given the strength of the life and liberty interests at stake when a prisoner files a first federal habeas or § 2255 petition, we therefore joined every other circuit to address the question by holding that all prisoners whose convictions became final before the effective date of AEDPA would be entitled to a one-year grace period after that date within which to file their habeas or § 2255 petitions. See id. at 102 03; Mickens, 148 F.3d at 148; see also United States v. Flores, 135 F.3d 1000, 1006 (5th Cir. 1998), cert. denied, 525 U.S. 1091 (1999); Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998); O'Connor v. United States, 133 F.3d 548, 550 (7th Cir. 1998); Calderon v. United States District Court, 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998); United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996) (en banc), rev'd on other grounds, 521 U.S. 320 (1997). Under the rule set forth in Rossand Mickens, therefore, Muniz's first § 2255 petition was in fact timely, since she filed that petition before the April 24, 1997, deadline set forth by those decisions.

Muniz then proceeded to file with the District Court, pro se, a motion styled as an "Application for Certificate of Appealability," which was received in the District Court, according to the date stamp on that document itself, on July 29, 1998. Muniz's pro se application did not explicitly discuss the implications for her petition of our decisions in Ross and Mickens. However, she did explicitly challenge the District Court's denial of her petition on AEDPA limitations grounds, devoting approximately two of the five pages in her application to this argument and asserting that she had, "with due diligence and as mandated by AEDPA[,] filed her 2255 motion within a year of the effective date." Application for Certificate of Appealability at 3, Muniz v. United States, 97 Civ. 2105 (S.D.N.Y. June 15, 1998) (filed July 29, 1998) (emphasis added). While Muniz's pro se application was received over one month after our decisions in Rossand Mickens-and explicitly argued that the District Court incorrectly dismissed her petition based on the AEDPA limitations period-the District Court summarily denied that application, by memo endorsement and without any explanation, approximately six weeks later on September 9, 1998.

The time period within which Muniz was required to file her notice of appeal-sixty days following entry of the District Court's order denying her § 2255 petition, since the United States is a party, see Fed. R. App. P. 4(a)(1)(B)-expired on August 15, 1998. See Houston v. Greiner, 174 F.3d 287, 288 (2d Cir. 1999) (distinguishing among signature, filing, and entry dates for purposes of Fed. R. App. P. 4(a)(1) time limits, and holding that relevant date is when judgment or order is entered on District Court docket). While Muniz's application for a certificate of appealability was filed with the District Court well before that deadline, on July 29, 1998, she formally never did file a notice of appeal from the District Court's June 15 order denying her § 2255 petition-the notice of appeal she subsequently did file on September 24, 1998, appealed from the District Court's denial of her application, not the denial of her § 2255 petition itself. Thereafter, we dismissed Muniz's appeal sua spontefor lack of appellate jurisdiction on the ground that her notice of appeal was untimely under Fed. R. App. P. 4(a)(1). See Muniz v. United States, No. 98 2995 (2d Cir. Jan. 8, 1999). Since then, however, we have made clear that an application for a certificate of appealability filed pro se within the time period required to file a notice of appeal under Fed. R. App. P. 4(a)(1) should be construed as a timely notice of appeal. See Marmolejo v. United States, 196 F.3d 377, 378 (2d Cir. 1999) (per curiam).

Muniz filed the present motion for an order authorizing her to file a "second or successive" § 2255 petition on June 30, 2000. Title 28, section 2244(b)(3)(D) of the United States Code requires a motion for leave to file a "second or successive" habeas or § 2255 petition to be granted or denied "not later than 30 days after the filing" of the motion. For Muniz's present motion, that date was July 30, 2000. However, because this case involves a difficult and important issue "requir[ing] a published opinion that cannot reasonably be prepared within 30 days," Thomas v. Superintendent/Woodbourne Corr. Facility, 136 F.3d 227, 230 (2d Cir. 1997) (citing Galtieri v. United States, 128 F.3d 33, 37 (2d Cir. 1997)), and on which we did not have the benefit of counseled briefing, we deferred final disposition of petitioner's pro se motion and appointed counsel for Muniz pursuant to 18 U.S.C. § 3006A(g). We directed counsel for both parties to address the following question in addition to any other meritorious issues:

whether petitioner's petition should be considered a first petition under [AEDPA] (in light of the earlier petition's dismissal for untimeliness and petitioner's failure to file a timely notice of appeal therefrom) and, if so, whether we should transfer her petition, pursuant to 28 U.S.C. § 1631, to the District Court.

Muniz v. United States, No. 00-3571 (2d Cir. July 28, 2000).

DISCUSSION

AEDPA's gatekeeping provisions for "second or successive" petitions under § 2255 permit us to certify a "second or successive" petition to be filed in a district court only if the petition contains:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have...