Pratt v. U.S.

• Decision Date: 05 September 1997
• Docket Number: No. 97-1579,97-1579
• Citation: 129 F.3d 54
• Parties: David P. PRATT, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 54

129 F.3d 54

David P. PRATT, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 97-1579.

United States Court of Appeals First Circuit.

Heard Sept. 5, 1997.

Decided Nov. 6, 1997.

Leo T. Sorokin, Federal Defender Office, Boston, MA, for appellant.

Peter E. Papps, First Assistant United States Attorney, Concord, NH, with whom Paul M. Gagnon, United States Attorney, was on brief, for appellee.

Before SELYA, BOUDIN and STAHL, Circuit Judges.

SELYA, Circuit Judge.

Petitioner-appellant David P. Pratt, who is currently serving a federal sentence, filed a second petition for post-conviction relief under 28 U.S.C. § 2255 (1994 and Supp.1996). ¹ Relying on the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996) (codified in scattered sections of 28 U.S.C.), the district court dismissed the petition pro forma because Pratt had not obtained clearance from the court of appeals. AEDPA's novelty, together with the odd timing and peculiar circumstances of the petitioner's case, take us down a sometimes recondite legal trail. In the end, we conclude that AEDPA applies here and that, properly construed, it bars Pratt's attempt to prosecute a second habeas petition.

I. BACKGROUND

In April of 1994, a federal petit jury in the District of New Hampshire heard testimony that, after a local police chief confiscated several of Pratt's firearms, Pratt sent him a mutilated pig carcass. Weighing this and other evidence, the jury found Pratt guilty of mailing a threatening communication in violation of 18 U.S.C. § 876 (1994). The judge departed upward and sentenced Pratt to a lengthy prison term. The appeal period expired and Pratt's conviction became final.

After unsuccessfully moving pro se to file a tardy notice of appeal, Pratt filed his first section 2255 petition on March 9, 1995. He alleged a violation of his Sixth Amendment right to the effective assistance of counsel premised on a claim that, despite repeated requests, his trial attorney had failed to perfect a timeous appeal of the conviction. Pratt did not aver, however, that his attorney's performance at trial was constitutionally defective. The district court granted the petition in an unpublished order, vacated the judgment, and after appointing fresh counsel resentenced Pratt (thus triggering a new appeal period). Pratt's new lawyer filed a timely appeal, but to no avail; a panel of this court affirmed the conviction. See United States v. Pratt, 73 F.3d 450, 454 (1st Cir.1996). ²

On January 17, 1997, Pratt filed his second section 2255 petition, this time seeking to set aside his conviction on the ground that his original lawyer's lack of trial acumen violated Pratt's Sixth Amendment right to the effective assistance of counsel. On April 8, 1997, the district court dismissed this petition without prejudice for failure to comport with AEDPA's "prior approval" prerequisite for second or successive habeas petitions. This appeal ensued.

II. ANALYSIS

AEDPA took effect on April 24, 1996, after the district court resolved Pratt's initial habeas petition but before his second petition eventuated. The new law imposes significant restrictions on second or successive habeas petitions brought on behalf of federal prisoners. These restrictions have both procedural and substantive dimensions. Procedurally, AEDPA incorporates by reference in section 2255 the same screen that AEDPA makes applicable to second or successive habeas petitions prosecuted on behalf of persons being held in state custody. The statute thus requires a federal prisoner, before docketing a second or successive habeas petition in the district court, to obtain from "the appropriate court of appeals ... an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A) (as incorporated in 28 U.S.C. § 2255); see also Felker v. Turpin, --- U.S. ----, ----, 116 S.Ct. 2333, 2337, 135 L.Ed.2d 827 (1996). Substantively, AEDPA directs the court of appeals to condition its authorization of a second or successive petition on the applicant's showing of either:

(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 found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255.

This appeal necessitates that we determine whether Pratt's second section 2255 petition comes within AEDPA's reach, and if so, whether the statute permits us to authorize further proceedings in the district court. Before pursuing either of these inquiries, however, we pause to address the government's contention that this court lacks jurisdiction to hear the instant appeal.

A.

In the proceedings below, the district court dismissed Pratt's second habeas petition without prejudice, noting that he had failed to obtain clearance from the court of appeals as required by AEDPA. The government contends that, inasmuch as the order is not dispositive of any issue, it is not a "final order," 28 U.S.C. § 1291 (1994), and thus cannot support the weight of an appeal. The government is wrong.

AEDPA's prior approval provision allocates subject-matter jurisdiction to the court of appeals by stripping the district court of jurisdiction over a second or successive habeas petition unless and until the court of appeals has decreed that it may go forward. See Nunez v. United States, 96 F.3d 990, 991 (7th Cir.1996). This statutory directive means that a district court, faced with an unapproved second or successive habeas petition, must either dismiss it, see id., or transfer it to the appropriate court of appeals, ³ see Benton v. Washington, 106 F.3d 162, 164 (7th Cir.1996); Liriano v. United States, 95 F.3d 119, 122-23 (2d Cir.1996). The court below chose the former course.

If Pratt had acknowledged that AEDPA governed his latest petition, the district court's decision might not have been appealable. Here, however, Pratt disputes AEDPA's applicability. He can regain access to the district court (and thereby vindicate his theory) only by an appeal and a subsequent holding that the district court erred in applying AEDPA to his latest petition. The district court's order is therefore final in the relevant sense, see In re Nineteen Appeals Arising Out of the San Juan Dupont Plaza Hotel Fire Litig., 982 F.2d 603, 608 (1st Cir.1992) (explaining that section 1291's finality requirement has a practical cast), and it is appealable. That the district court's dismissal was without prejudice is of no moment. Appellate courts routinely exercise jurisdiction over claims dismissed without prejudice when the dismissal contains sufficient indicia of finality. See, e.g., Presbytery of N.J. v. Florio, 40 F.3d 1454, 1461 (3d Cir.1994); Kobleur v. Group Hospitalization & Med. Services, Inc., 954 F.2d 705, 708 (11th Cir.1992); Brady v. Sullivan, 893 F.2d 872, 876 n. 8 (7th Cir.1989); Local Div. No. 714 v. Greater Portland Transit Dist., 589 F.2d 1, 6 (1st Cir.1978).

To be sure, Pratt also contends that even if AEDPA applies generally to cases in the same temporal posture its provisions do not bar his pursuit of post-conviction relief. To this extent, the government's jurisdictional jousting may hit closer to home. Nevertheless, we need not spend much time on this largely metaphysical debate. In very similar circumstances, the Seventh Circuit has crafted a pragmatic approach to this sort of problem. It has declared that it will treat a notice of appeal as a request for an authorization to file a second section 2255 petition and thus preserve appellate jurisdiction if doing so will save unnecessary paperwork without sacrificing any party's substantial rights. See Nunez, 96 F.3d at 991.

Pratt invites us to employ that approach here, the appellate record is adequate to the task, and taking this avenue expedites adjudication of the matters in issue. We therefore hold that, when a district court dismisses a second or successive petition without prejudice because the court of appeals has not approved its prosecution, and the petitioner appeals, the court of appeals may in its discretion treat the notice of appeal as a request for authorization to file a second or successive petition. We exercise that discretion here to the extent, if at all, that it may be necessary to do so. Either way, we have jurisdiction to hear and determine the issues raised in Pratt's appeal.

B.

The filing dates of Pratt's two section 2255 petitions straddle AEDPA's effective date. On this basis, Pratt maintains that the question whether the statute applies to his second petition must be answered in the negative because doing so would place an impermissible retroactive burden on his first petition. We disagree.

We begin our analysis by remarking the obvious: applying a statute to a pleading that was filed after the statute's effective date is not really a "retroactive" application in the classic sense. Here, moreover, we know on the best of authority that Congress intended that AEDPA apply to all section 2255 petitions filed after its effective date (April 24, 1996). See Lindh v. Murphy, --- U.S. ----, ----, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997).

We know, too, that the Supreme Court recently and uncritically applied AEDPA to a prisoner's second habeas petition even though the prisoner had filed his first petition prior to AEDPA's enactment. See Felker, at ---- - ----, 116 S.Ct. at 2336-37. Several courts of appeals have followed suit. See, e.g., In re Medina, 109 F.3d 1556, 1561-62 (11th Cir.1997); Roldan v. United States, 96 F.3d 1013, 1014 (7th Cir.1996); Hatch v. Oklahoma, 92 F.3d 1012, 1014 (10th Cir.1996). This approach is sound not only from a legal perspective but also from the standpoint of common...