U.S. v. Brooks

• Decision Date: 23 October 2000
• Docket Number: No. 98-7419,98-7419
• Citation: 230 F.3d 643
• Parties: (3rd Cir. 2000) UNITED STATES OF AMERICA V. LAWRENCE BROOKS APPELLANT IN NO. 98-7419 IN RE: LAWRENCE BROOKS PETITIONER IN NO. 99-8043 , and 99-8043
• Court: U.S. Court of Appeals — Third Circuit

Page 643

230 F.3d 643 (3rd Cir. 2000)

UNITED STATES OF AMERICA

V.

LAWRENCE BROOKS APPELLANT IN NO. 98-7419

IN RE: LAWRENCE BROOKS PETITIONER IN NO. 99-8043

No. 98-7419, and 99-8043

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued February 28, 2000

Filed October 23, 2000

On Appeal From the United States District Court For the Middle District of Pennsylvania, D.C. Crim. Action No. 92-cr-00303-2, District Judge: Honorable William W. Caldwell

Attorney for Appellee: Kim D. Daniel Theodore B. Smith, III (Argued) Office of United States Attorney Federal Building 228 Walnut Street P.O. Box 11754 Harrisburg, PA 17108

Attorney for Appellant: Daniel I. Siegel (Argued) Office of Federal Public Defender 100 Chestnut Street Harrisburg, PA 17101

Attorney for Amicus-appellant National Association of Criminal Defense Lawyers: Peter Goldberger 50 Rittenhouse Place Ardmore, PA 19003-2276

Before: Alito and Stapleton, Circuit Judges, and POLLAK,^* District Judge

OPINION OF THE COURT

Stapleton, Circuit Judge

Lawrence Brooks filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. S 2255, seeking reinstatement of his right to appeal his conviction on the ground that the District Court failed to inform him of his appellate rights in violation of the Federal Rules of Criminal Procedure. After a full hearing on the merits, the District Court denied Brooks' petition, and Brooks has appealed. We will deny Brooks' request for a certificate of appealability and dismiss his petition for a writ of habeas corpus, filed with this Court pursuant to 28 U.S.C. S 2241.

I.

In 1993, Lawrence Brooks pleaded guilty to participation in a drug conspiracy and received a sentence of 24 years and 4 months of imprisonment. According to former Rule 32(a)(2) of the Federal Rules of Criminal Procedure,¹ the District Court was required, after imposing sentence, to advise the defendant of his right to appeal. The District Court failed to so advise Brooks, and no direct appeal was filed. In 1997, Brooks filed a motion for post-conviction relief under 28 U.S.C. S 2255, seeking, inter alia, reinstatement of his right to a direct appeal.

Brooks filed his motion for post-conviction relief pro se. In his motion, Brooks raised 11 separate grounds for relief, and ultimately the District Court appointed the Federal Public Defender to represent Brooks. His attorney then filed an amended motion for post-conviction relief, which clarified the "loss of appellate rights" claim.

On April 28, 1998, an evidentiary hearing was held before the District Court for the Middle District of Pennsylvania. At that hearing, Brooks himself testified, as did his appointed trial counsel, Jeffrey Yoffee. Brooks testified that the Court failed to advise him of his right to appeal, and that fact is undisputed. He further testified that his attorney had not advised him of the right to file an appeal, either at the courthouse following sentencing or at any time during the ten-day period following the sentencing hearing. Finally, Brooks testified that, if he had known of his right to appeal, he would have instructed counsel to file one.

Yoffee testified that he had no specific recollection of advising Brooks of his appellate rights, either on the day of sentencing or in the ten days following. Yoffee confirmed that he did not have any notes or memoranda reflecting that he had advised Brooks of his appellate rights. What Yoffee did say, and it is this fact on which the District Court seized, is that it was his customary practice, following a sentencing hearing, to inform clients of their right to appeal. Specifically, Yoffee said:

It is [my customary practice to inform defendants of their appellate rights after the sentencing hearing] and I believe I had a conversation with Mr. Brooks after sentencing up in the holding cell regarding his appellate rights, but to be honest with you, I can't be sure if I'm filling in the blanks or whether my recollection of it is actually a true one. All I can say is I routinely in federal cases especially go to the holding cell after a sentence and speak with my client not just about appellate rights but that's generally the end of the case. I say if you have any questions, give me a call, that kind of thing. I'm almost certain that I did with Mr. Brooks, but I can't positively remember that I did.

App. 82-83 (direct testimony). He further testified that, if a defendant requests an appeal, he files that appeal, regardless of the grounds.

On cross-examination by the prosecutor, Yoffee confirmed that he "strongly believed" that he had advised Brooks of his appellate rights. See App. 106-07. He agreed with the prosecutor that he "most likely" would have done so immediately after sentencing. In this regard, Yoffee noted that he had billed the court for a three-tenths of one hour meeting with Brooks on the date of sentencing. Nevertheless, there are no notations in his files regarding conversations with Brooks during the ten-day window in which to file a notice of appeal. Brooks asserts that this omission is significant, "because on a later occasion, Mr. Yoffee did make a note of a communication from Mr. Brooks regarding his desire for an appeal."² Brief for Appellant at 14.

After hearing all of the evidence, the District Court denied Brooks' motion for post-conviction relief. The Court found that it had failed to advise Brooks of his right to an appeal and further found that Yoffee had "no independent recollection of advising the defendant of his right to appeal...." App. 165. Nevertheless, the Court was persuaded that Yoffee had advised Brooks of his appellate rights and, thus, that the Court's failure to do so constituted harmless error.

Brooks appealed to this Court, seeking a certificate of appealability to review the District Court's judgment. In the alternative, Brooks has filed an original petition for a writ of habeas corpus with this Court, pursuant to 28 U.S.C. S 2241, arguing that, if we deny his request for a certificate of appealability, we nevertheless exercise our power under S 2241 to review his claims.

II.

The first issue -- i.e., whether we will grant Brooks' request for a certificate of appealability -- need not detain us long. Section 2253(c)(1) of Title 28 provides that "an appeal may not be taken to the court of appeals from... the final order in a proceeding under section 2255... [u]nless a circuit justice or judge issues a certificate of appealability...." 28 U.S.C. S 2253(c)(1)(B). Section 2253(c)(2) then goes on to provide that "[a] certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right." Id. S 2253(c)(2) (emphasis added). Brooks has argued that, while S 2253(c)(2) seemingly permits us to review only constitutional questions, we should, nevertheless, hold that certificates of appealability may be awarded in cases presenting substantial federal, but non-constitutional, questions. A panel of this Court heard argument on that issue on February 28, 2000, and then, a majority of the active judges having voted for rehearing, the issue was reargued before the Court en banc on May 24, 2000.

This case was reargued en banc along with United States v. Cepero, 224 F.3d 256, (3d Cir. 2000), which presented the same issue. Following the en banc Court's decision in Cepero, this case was remanded to the original merits panel for final disposition. As we held in Cepero, we may not grant a certificate of appealability to review non-constitutional questions unless the issue is procedural and the underlying petition raises a substantial constitutional question. Accord Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1604 (2000) ("When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.") (emphasis added). It is conceded here that Brooks' only claim, which is based on Rule 32 of the Federal Rules of Criminal Procedure, is not a constitutional claim. Accordingly, we are constrained to deny Brooks' request for a certificate of appealability, and the District Court's judgment will, thus, stand.

III.

Apparently recognizing the difficulty in overcoming the language of 28 U.S.C. S 2253(c)(2), Brooks has filed an original petition for a writ of habeas corpus with this Court, pursuant to 28 U.S.C. S 2241. He asks that, if we hold, as we have, that we are unable to review the District Court's judgment in the S 2255 proceeding, we, nevertheless, exercise our power under S 2241 to adjudicate his application for a writ of habeas corpus as an original matter.³ As we will explain, we hold that S 2241 is not available as a remedy for Brooks.

Section 2255 provides, in pertinent part:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. S 2255, P 5 (emphasis added). Thus, in a situation where the S 2255 procedure is shown to be "inadequate or ineffective," a prisoner is entitled to apply for a writ of habeas corpus, and courts are empowered to grant the writ by 28 U.S.C. S 2241. See United States v. Hayman, 342 U.S. 205, 223 (1952).

We recently considered the scope of the "inadequate or ineffective" "safety valve" in S 2255 in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1...