U.S. v. Allen

• Decision Date: 05 February 1980
• Docket Number: No. 79-1263,79-1263
• Citation: 613 F.2d 1248
• Parties: UNITED STATES of America, Appellant, v. John Brett ALLEN.
• Court: U.S. Court of Appeals — Third Circuit

Page 1248

613 F.2d 1248

UNITED STATES of America, Appellant, v. John Brett ALLEN.

No. 79-1263.

United States Court of Appeals Third Circuit.

Argued Nov. 15, 1979.

Decided Feb. 5, 1980.

Peter F. Vaira, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief Appellate Division, William E. Ball (argued), Asst. U. S. Atty., Philadelphia, Pa., for appellant.

Thomas Colas Carroll (argued), Carroll, Creamer, Carroll & Duffy, Philadelphia, Pa., for appellee.

Before SEITZ, Chief Judge, ALDISERT, Circuit Judge, and TEITELBAUM, District Judge. ^*

OPINION OF THE COURT

SEITZ, Chief Judge.

The government appeals from the district court's grant of a new trial pursuant to Allen's motion for collateral relief under 28 U.S.C. § 2255 (1976) from his conviction for conspiring to possess marijuana with the intent to distribute it in violation of 21 U.S.C. § 841(a)(1) (1976). ¹

I. Factual Background

The facts in this case revolve around a telephone answering service, a Ryder rent-a-truck, and the Dusselfink Motel in Pottsville, Pennsylvania. On December 15, 1975, a person using the name "Thomas J. Meador" rented a truck from Ryder in Colorado. The truck was registered in Oregon with license plates from that state. On December 18, two individuals registered at the Dusselfink Motel in Pottsville, signing the names "Tom Meador" and "Richard Cooper." They were given room 242. The motel records indicate a Ryder truck with Oregon license plates was listed as belonging to the occupants of room 242.

December 18 was a busy day. At about 4 p. m. Colorado time, Allen left a message with his answering service, which was located in Colorado. The message was that if a "Jeff Stewart" should call, the service should tell him to go to Pottsville, not Pottstown, and check into the Dusselfink Motel. Stewart then should call 717-366-2723 and ask for Mr. Holiday. ² In addition, the service was to tell Stewart that Allen was on his way.

At 6:49 p. m., Colorado time, someone using the name "Jeff Stewart" called the answering service. He asked the service to tell Allen to call 717-385-2407, room 242. That number is the telephone number for the Dusselfink Motel. The motel's records indicate that a call was made to the answering service.

Sometime later that evening, an unidentified male came to the Dusselfink Motel registration desk and asked for room 242. Shortly thereafter, federal agents who were staking out the motel observed an individual run through the parking lot. The Ryder truck then was seen being driven away.

Early the next morning, December 19, police arrested Allen at a cabin near Deer Lake, Pennsylvania. The Ryder truck now was parked at the cabin. In the pocket of the jacket worn by Allen at his arrest, the officers found a key that opened the padlock on the truck and the ignition key for the truck. They discovered 1,100 pounds of marijuana in the back of the truck.

Soon after, the police arrested Meador and Cooper in room 242. In the room, the police found a piece of paper with the number 366-2723 written on it, the number that Allen asked his answering service to give to Jeff Stewart.

Allen, Meador, and Cooper were indicted and convicted of conspiring to possess marijuana with the intent to distribute it. All three directly appealed to this court. Meador's conviction was affirmed without opinion. United States v. Meador, 559 F.2d 1209 (3d Cir. 1977). Although Allen's conviction was affirmed, his case was remanded for resentencing. United States v. Allen, 566 F.2d 1193 (3d Cir. 1977), Cert. denied, 435 U.S. 926, 98 S.Ct. 1491, 55 L.Ed.2d 519 (1978). Finally, Cooper's conviction was reversed for lack of sufficient evidence that he participated in a Meador-Allen conspiracy. United States v. Cooper, 567 F.2d 252 (3d Cir. 1977).

On remand, the district court resentenced Allen. Allen then made a motion under § 2255 for a new trial, arguing that his conviction was not based on sufficient evidence, a point he did not raise in his direct appeal to this court. ³ The district court granted the motion, and the government took this appeal.

II. Jurisdiction

Although the parties did not brief the issue, we must initially consider our own jurisdiction to hear the government's appeal. Section 2255 provides: "An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus." 28 U.S.C. § 2255 (1976). As to normal habeas corpus cases, an appeal lies from the final order of the habeas court. Id. § 2253. In general, this has been read to mean that normal principles of finality in cases involving 28 U.S.C. § 1291 (1976) apply to appeals involving habeas corpus and § 2255. See, e. g., United States ex rel. Cleveland v. Warden, New Jersey State Prison, 544 F.2d 1200, 1202 & n.4 (3d Cir. 1976).

In a direct criminal appeal, the government may only appeal orders dismissing an indictment or information or suppressing evidence. 18 U.S.C. § 3731 (1976). Moreover, in cases of direct appeal, an order granting a new trial normally is not final and hence not subject to appellate review. The United States Court of Appeals for the Fifth Circuit has held, however, that the grant of a new trial is a final order in the context of a § 2255 proceeding that permits the government to appeal. See United States v. Dunham Concrete Products, Inc., 501 F.2d 80 (5th Cir. 1974), Cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975). For several reasons, we agree with the result reached by the Fifth Circuit and hold that the grant of a new trial is a final, appealable order in proceedings under § 2255.

First, the language of § 2255 indicates that a grant of a new trial is a final, appealable order. Paragraph 6 of § 2255 provides that an appeal may be taken "from the order entered on the motion." Paragraph 3 of § 2255 states exactly what orders may be entered if the motion is granted: "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him Or grant a new trial or correct the sentence as may appear appropriate." (emphasis supplied). As in all cases of statutory construction, different portions of the same statutory provision should be read in conjunction with each other. Reading paragraphs 3 and 6 together, because the grant of a new trial is an "order entered on the motion" within the meaning of paragraph 6, it would seem that Congress contemplated appeals from the grant of a new trial. ⁴

This reading of paragraphs 3 and 6 is supported by the general analytical approach of cases dealing with the meaning of final orders under § 2255. The crucial question in these cases in determining finality is whether the district court has entered one of the orders specified in paragraph 3 of § 2255. For example, in Andrews v. United States, 373 U.S. 334, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963), the defendant asked the § 2255 court to resentence him. Although the court decided to grant the motion it did not enter an order resentencing the defendant. The government appealed, and the Supreme Court held that the failure to enter the order meant there was no appealable order. Thus the crux in Andrews was whether the § 2255 court actually had entered the specific order requested. As already noted, the district court here entered an order expressly permitted by § 2255, the action missing in Andrews.

Second, the nature of § 2255 proceedings supports the finality of the order here. As opposed to being an integral part of the criminal trial, "a proceeding under Section 2255 is an independent and collateral inquiry into the validity of the conviction." United States v. Hayman, 342 U.S. 205, 222, 72 S.Ct. 263, 274, 96 L.Ed. 232 (1952). Accord, e. g., Heflin v. United States, 358 U.S. 415, 418 n.7, 79 S.Ct. 451, 453, 3 L.Ed.2d 407 (1959); Neely v. United States, 546 F.2d 1059, 1065 (3d Cir. 1976). Cf. Andrews v. United States, 373 U.S. 334, 338, 83 S.Ct. 1236, 1239, 10 L.Ed.2d 383 (1963) (government appeals under § 2255 are not subject to the Criminal Appeals Act). ⁵

The significance of the separate nature of a § 2255 proceeding lies in its impact on the district court's jurisdiction. In a typical case, the jurisdictional basis for the original trial, the grant of a new trial, and the retrial remains the same throughout. The same is not true with § 2255. That section confers jurisdiction for a limited purpose and nowhere does it grant the § 2255 court authority to retry the defendant. That simply is not one of the "orders on the motion" listed in paragraph 3. All the § 2255 court can do is grant a motion to retry. Once it does that, jurisdiction to retry the defendant shifts to an entirely severable basis. E. g., 18 U.S.C. § 3231 (1976). Unlike the typical case already postulated, the jurisdictional basis for the trial, grant of a new trial, and retrial is not the same.

In short, once the § 2255 court grants a motion for a new trial, its jurisdiction as a § 2255 court ends and there is "nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). Hence the separate nature of § 2255 proceedings means that the grant of a new trial in this context is a final order.

Moreover, the fact that the sentencing judge and the § 2255 judge are the same person is not dispositive. This merely reflects a desire to relieve the case-load burden of judges located in districts containing federal prisoners. See generally United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952).

Nor is Collins v. Miller, 252 U.S. 364, 40 S.Ct. 347, 64 L.Ed. 616 (1920), to the contrary. There, the British consul applied to a district court for the extradition of Collins, presenting three affidavits as the basis for extradition. The district court held a hearing only on the first affidavit, found it sufficient for extradition, ordered Collins into custody, and certified its findings to the...