U.S. v. Emmanuel

• Decision Date: 07 May 2002
• Docket Number: No. 00-7578.,00-7578.
• Citation: 288 F.3d 644
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shahborn EMMANUEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

288 F.3d 644

UNITED STATES of America, Plaintiff-Appellee, v. Shahborn EMMANUEL, Defendant-Appellant.

No. 00-7578.

United States Court of Appeals, Fourth Circuit.

Argued September 27, 2001.

Decided May 7, 2002.

ARGUED: James Richard Glover, Glover & Petersen, P.A., Chapel Hill, North Carolina, for Appellant. Brian Lee Whisler, Assistant United States Attorney, Office of the United States Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF: Robert J. Conrad, Jr., United States Attorney, Office of the United States Attorney, Charlotte, North Carolina, for Appellee.

Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.

Vacated and remanded by published opinion. Judge TRAXLER wrote the majority opinion, in which Judge NIEMEYER joined. Judge WIDENER wrote a concurring opinion.

OPINION

TRAXLER, Circuit Judge.

In this appeal, we are asked to decide what procedures a district court should follow prior to converting a prisoner's mislabeled or unlabeled post-conviction motion into the movant's first § 2255 motion, see 28 U.S.C.A. § 2255 (West Supp.2001). We hold that a district court should give the movant notice of its intent to so construe the motion and an opportunity to supplement or amend the motion to the extent permitted by law to reflect all grounds for post-conviction relief that the movant wishes to raise. Because the district court in this case sua sponte construed Appellant Shahborn Emmanuel's post-conviction Rule 35 motion as his first § 2255 motion without these protections, we vacate the district court's orders denying Emmanuel relief and remand for further proceedings.

I.

Emmanuel was convicted by a jury of one count of assault inflicting bodily injury on a protected government employee. See 18 U.S.C.A. §§ 111(a)(1), (b), 1114 (West 2000). He was sentenced to the maximum ten-year term of imprisonment, and this court affirmed his conviction and sentence. See United States v. Emmanuel, No. 98-4763, 1999 WL 1020548 (4th Cir.1999) (per curiam) (unpublished), cert. denied, 529 U.S. 1029, 120 S.Ct. 1442, 146 L.Ed.2d 329 (2000).

In August 2000, Emmanuel filed a motion to vacate his sentence. He labeled it a Rule 35 motion, see Fed.R.Crim.P. 35, and cited Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), in support of his contention that his sentence had been unlawfully enhanced. Emmanuel had never filed a § 2255 motion for relief from his sentence. The district court apparently understood Emmanuel to argue that his sentence was invalid because the district court had treated bodily injury as a sentencing factor rather than an element of the charged offense. The district court, sua sponte and without notice to Emmanuel, construed the motion as a § 2255 motion and summarily dismissed the motion under Rule 4 of the Rules Governing Section 2255 Proceedings.

Emmanuel then filed a motion for reconsideration in which he attempted to clarify his motion to vacate and essentially argued that the district court misapplied Jones in denying him relief. Emmanuel stated that the district court had misunderstood his original motion and that he meant to challenge the fact that use of a deadly weapon was neither charged in the indictment nor submitted to the jury. Emmanuel directed the court's attention to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), as further authority for his contention that his sentence was unlawful. The district court denied Emmanuel's motion to reconsider, finding that use of a deadly weapon was not an element of the charged offense.

Emmanuel then filed a second motion to reconsider and argued that the court erred by construing his original motion, styled as a Rule 35 motion, as a § 2255 motion. He also attached a proposed § 2255 motion reasserting the ground for relief raised in his Rule 35 motion to vacate and listing several additional claims he wished to pursue in a collateral proceeding. Emmanuel requested that his original motion to reconsider be withdrawn, that the court consider the attached § 2255 motion, and that the court reconsider its order denying relief. In the alternative, Emmanuel requested that the court treat the second motion to reconsider as a notice of appeal from the prior orders. In ruling on the second motion, the district court found that it properly construed Emmanuel's Rule 35 motion as a § 2255 motion and declined the invitation to treat the motion for reconsideration as a notice of appeal. Accordingly, the district court again denied all requested relief.

Emmanuel noted a timely appeal from all of the district court's orders. On appeal, Emmanuel argues that, in light of the strict limitations on second or successive motions and the fact that he had additional grounds he wished to raise in a § 2255 motion, the district court erred by sua sponte converting his Rule 35 motion into a § 2255 motion and ruling on the merits without giving him notice and an opportunity to amend the motion. Since Emmanuel still had approximately six months left in which to file a timely § 2255 motion at the time of the district court's decision to treat his Rule 35 motion as a § 2255 motion, Emmanuel further contends that on remand the one-year statute of limitations governing § 2255 motions should be tolled for six months. See 28 U.S.C.A. § 2255 (providing a one-year statute of limitations for § 2255 motions). For its part, the Government does not take issue with Emmanuel's contention that the district court erred by sua sponte construing Emmanuel's Rule 35 motion as a § 2255 motion without giving him notice and an opportunity to amend. The Government, however, contends that the proper relief is simply to have the district court consider the proposed § 2255 motion that Emmanuel submitted with his second motion for reconsideration.

II.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), dramatically transformed the landscape of post-conviction relief proceedings. Among the AEDPA's more significant provisions is its stringent limitation on a federal prisoner's ability to bring a "second or successive" post-conviction motion pursuant to § 2255. See 28 U.S.C.A. § 2255. Specifically, a prisoner may only bring a second or successive § 2255 motion in one of two circumstances: the prisoner must either (1) have newly discovered evidence, or (2) be relying on a new rule of constitutional law that the Supreme Court has made retroactively applicable to collateral proceedings. See id.

Before the AEDPA, district courts received various and sundry post-conviction motions from prisoners, examined their substance and the relief sought, and, when appropriate, routinely treated certain of them as having been made pursuant to § 2255, regardless of the label the prisoner gave the motion or the fact that no label was given at all. A number of circuits, ours included, approved this practice because at the time it benefitted the prisoner. See, e.g., Raines v. United States, 423 F.2d 526, 528 n. 1 (4th Cir.1970) (noting that a pleading that seeks a writ of error coram nobis is properly treated as a motion under § 2255); see also Adams v. United States, 155 F.3d 582, 583 (2d Cir. 1998) (per curiam) ("Prior to the enactment of AEDPA, district courts routinely converted post-conviction motions of prisoners who unsuccessfully sought relief under some other provision of law into motions made under 28 U.S.C. § 2255 and proceeded to determine whether the prisoner was entitled to relief under that statute."). Because of the AEDPA's limitation on second or successive § 2255 motions, however, that practice can now have serious adverse consequences for the movant. As the Second Circuit has observed:

If a district court receiving a motion under some other provision of law elects to treat it as a motion under § 2255 and then denies it, that may cause the movant's subsequent filing of a motion under § 2255 to be barred as a "second" § 2255. Thus a conversion, initially justified because it harmlessly assisted the prisoner-movant in dealing with legal technicalities, may result in a disastrous deprivation of a future opportunity to have a well-justified grievance adjudicated. The court's act of conversion which we approved under pre-AEDPA law because it was useful and harmless might, under AEDPA's new law, become extraordinarily harmful to a prisoner's rights. A prisoner convicted pursuant to unconstitutional proceedings might lose the right to have a single petition for habeas corpus adjudicated, solely by reason of a district court's having incorrectly recharacterized some prior motion as one brought under § 2255.

Adams, 155 F.3d at 583-84 (footnote omitted); see also United States v. Miller, 197 F.3d 644, 649 (3d Cir.1999) ("With AEDPA in place, the practice of liberally construing post-conviction motions as § 2255 [motions] can, in the absence of cautionary or educational measures, impair the ability of inmates to challenge their convictions on collateral review. If each pro se post-conviction filing is treated as a § 2255 [motion], ... inept [movants] face losing potentially valid constitutional claims at the hands of judges who are applying a rule of liberal construction that was created to benefit pro se claimants."). Consequently, a prisoner must now be careful to include all of his grounds for relief in his first § 2255 motion because his ability to raise other grounds later has been severely curtailed.

Recognizing these potential repercussions, the majority of our sister circuits in the post-AEDPA world have rendered decisions that either limit the district court's ability to continue the practice of sua sponte construing a post-conviction motion as a movant's first collateral attack or ameliorate the impact of the AEDPA when the district court does so.¹ The Second Circuit, for instance, now holds that a district court may not sua sponte construe a post-conviction motion as a §...