U.S. v. Eyer, 96-7310

• Decision Date: 14 May 1997
• Docket Number: No. 96-7310,96-7310
• Citation: 113 F.3d 470
• Parties: UNITED STATES of America, v. Robert G. EYER, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 470

113 F.3d 470

37 Fed.R.Serv.3d 1288

UNITED STATES of America, v. Robert G. EYER, Appellant.

No. 96-7310.

United States Court of Appeals Third Circuit.

Argued April 17, 1997.

Decided May 14, 1997.

David M. Barasch, United States Attorney, Theodore B. Smith, III (argued), Assistant U.S. Attorney, Harrisburg, PA, for Appellee.

Cheryl J. Sturm (argued), Westtown, PA, for Appellant.

Before GREENBERG, ALITO, and ROSENN, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Appellant, Robert G. Eyer, appeals from an order entered on April 11, 1996, denying his motion filed pursuant to 28 U.S.C. § 2255 ("section 2255"). On February 13, 1990, a grand jury returned a one-count indictment charging Eyer with using and carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)("section 924(c)(1)"). Eyer waived trial by jury, and was convicted at a bench trial on May 21, 1990. On August 10, 1990, the district court sentenced Eyer to a five-year custodial term followed by a three-year term of supervised release to be served consecutively to any sentence he then was serving.

On February 28, 1996, Eyer, through an attorney, filed a motion under section 2255 to vacate, set aside, or correct his sentence. The motion included a brief contending that in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the Supreme Court held that a defendant cannot be convicted of a violation of section 924(c)(1) unless he "actively employs the firearm in connection with the drug trafficking offense." The brief further asserted that "active employment" includes "brandishing, displaying, bartering, striking with, firing, attempting to fire, or referencing the firearm" but does not "include possession of a firearm at or near the site of a drug crime, storing a weapon near drug proceeds, or concealing a firearm nearby to be ready for imminent confrontation."

The brief quoted the presentence report which explained that a person cooperating with a drug task force placed an order with Eyer for an ounce of cocaine to be delivered to the purchaser's apartment. When Eyer arrived with the cocaine the officers arrested him and seized the automobile in which he was making the delivery. The officers then obtained a search warrant and searched the vehicle, finding a fully loaded Colt .380 caliber semi-automatic hand gun with a live round in its chamber located in the console between its front seats along with some cocaine. Not withstanding the location of the firearm, in his motion Eyer claimed that there was "no evidence that [he] actively employed the handgun." Thus, in his view, the government's proof could not support the conviction under section 924(c)(1) as construed in Bailey. Accordingly, Eyer requested that the district court vacate his conviction and sentence.

After the parties filed further pleadings, the district court, without holding a hearing, ruled on the section 2255 motion in a memorandum accompanying the order of April 11, 1996. The court pointed out that Bailey applied only to the "using" prong of section 924(c)(1) which speaks of a defendant who, in the disjunctive, "uses or carries a firearm" in relation to any crime of violence or drug trafficking crime. The court then held that Eyer was carrying the gun because he was transporting it by vehicle. The court cited several cases in support of this holding including United States v. Pineda-Ortuno, 952 F.2d 98, 103-04 (5th Cir.1992), and United States v. Freisinger, 937 F.2d 383, 387-88 (8th Cir.1991). Based on these conclusions, the district court denied the motion.

Eyer then appealed to this court and sought a certificate of appealability from both the district court and this court. On July 1, 1996, the district court granted a certificate of appealability. Its order, however, does not specify the issue or issues warranting granting the certificate notwithstanding that 28 U.S.C. § 2253(c)(3) ("section 2253(c)(3)") requires a certificate of appealability under 28 U.S.C. § 2253(c)(1) ("section 2253(c)(1)") to indicate the issues justifying its issuance. This court has not acted on Eyer's application to it for the certificate of appealability. The parties have briefed the case both on the procedural issues and on the merits and have argued orally. We exercise plenary review.

II. DISCUSSION

a. Procedural issues

The first issue is whether the district court properly issued the certificate of appealability. The government contends that the district court could not do so because only a circuit justice or a circuit judge can issue a certificate of appealability. Thus, the government argues that unless we issue a certificate of appealability, we cannot decide this case on the merits.

Until the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), effective April 24, 1996, a petitioner in federal custody who was denied relief by a district court on a section 2255 motion could appeal to a court of appeals without obtaining a certificate of probable cause. By contrast, a petitioner challenging detention arising out of process issued by a state court could not appeal "unless the justice or judge who rendered the order or a circuit justice or judge issue[d] a certificate of probable cause." 28 U.S.C. § 2253 ("section 2253"). The AEDPA changed these procedures; in particular the Act replaced certificates of probable cause with certificates of appealability and required prisoners in federal custody to obtain a certificate of appealability to appeal from the denial of relief under section 2255.

Unfortunately, the AEDPA created an ambiguity with respect to the designation of the judges who can issue certificates of appealability. It amended section 2253 in pertinent part to read as follows:

(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken from--

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or

(B) the final order in a proceeding under section 2255.

When Congress enacted the AEDPA it deleted from section 2253 the provision that the "judge who rendered the order" could issue a certificate of probable cause, and thus there is no provision in section 2253, as amended by the AEDPA, providing that the judge who rendered the order may issue a certificate of appealability. This deletion casts doubt on the power of a district judge to issue a certificate of appealability, especially inasmuch as the reference in section 2253 prior to its amendment by the AEDPA to"circuit justice or judge" arguably meant "circuit justice" or "circuit judge." After all, the "judge who entered the order" ordinarily would have been a district judge and thus it would not have been necessary to read "judge" in "circuit justice or judge" to include district judges in order to authorize a judge denying the order to issue a certificate of probable cause. Accordingly, the government reasonably argues that the district court did not have the authority to issue the certificate of appealability to Eyer.

We reject the government's argument. Certainly the term "circuit justice or judge" is ambiguous as "circuit" might modify only the word "justice" or might modify both "justice" and "judge." Obviously, if "circuit" applies to "judge" then only a court of appeals judge or circuit justice can issue a certificate of appealability. We might reject this application of "circuit" to "judge" on the ground that "circuit" as applied to "justice" refers to the allocation of the Supreme Court justices to the various circuits pursuant to an order of the Supreme Court as authorized in 28 U.S.C. § 42. Under this reasoning, "circuit" as applied to "justice" refers to a judicial assignment and "circuit" should not be read to modify the word "judge" and thus be given a different meaning and refer to judges on the basis of their appointment, which in this case is to a court of appeals.

In the final analysis, however, we conclude on a different basis that a district judge can issue a certificate of appealability. In section 2253(c)(1), as amended by the AEDPA, the language that an appeal may not be taken unless a "circuit justice or judge" issues a certificate of appealability is followed by the two subparagraphs, which we quoted above: subparagraph A, relating to custody arising out of process by a state court, and subparagraph B, relating to proceedings involving federal prisoners under section 2255. These paragraphs appear in section 2253(c)(1) in the disjunctive. This configuration makes it difficult, if not impossible, to construe section 2253(c)(1) so that "circuit justice or judge" has a different meaning in the two subparagraphs. Yet we know that, unless we are willing to hold that Congress made an extraordinary mistake in drafting, a district judge must be able to issue a certificate of appealability in a case arising under subparagraph A.

This conclusion cannot be avoided because the AEDPA amended Fed.R.App.P. 22(b) to read in part as follows:

Certificate of Appealability.--In a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of appealability pursuant to section 2253(c) of title 28, United States Code. If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of appealability or state the reasons why such a certificate should not issue.

Thus, at the very time that Congress amended section 2253 to remove the language providing that the "judge who rendered the order" could issue a certificate of probable cause, now a certificate of appealability, it provided in Rule 22(b) that a district...