U.S. v. Johnston

• Decision Date: 13 July 2001
• Docket Number: No. 99-20810,99-20810
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDWARD JOHN JOHNSTON, III, also known as Easy, also known as EZ, also known as Charles Edward Johnson, III, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 361

258 F.3d 361 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDWARD JOHN JOHNSTON, III, also known as Easy, also known as EZ, also known as Charles Edward Johnson, III, Defendant-Appellant.

No. 99-20810

UNITED STATES COURT OF APPEALS For the Fifth Circuit

July 13, 2001

Appeal from the United States District Court For the Southern District of Texas

Before HIGGINBOTHAM and DeMOSS, Circuit Judges, and FISH,^* District Judge.

DeMOSS, Circuit Judge:

Edward John Johnston, III, a federal prisoner, moves for a certificate of appealability ("COA"), claiming that the government violated his constitutional rights and 18 U.S.C. § 201(c) when it utilized witnesses who were either paid informants or were provided immunity from prosecution. After both the government and Johnston consented to proceed before a magistrate judge, the magistrate judge dismissed on the merits Johnston's motion to vacate, set aside or correct sentence filed pursuant to 28 U.S.C. § 2255 and also denied his motion for a COA. Because we conclude that the consensual delegation of § 2255 motions to magistrate judges violates Article III of the Constitution, we vacate the judgment and remand the case to the district court.

I. BACKGROUND

Johnston was convicted of conspiracy to possess with intent to distribute cocaine, cocaine base, and marijuana. He was sentenced to 135 months of imprisonment, five years of supervised release, a $6,000 fine, and a $50 special assessment. On direct appeal, we affirmed Johnston's conviction and sentence. The Supreme Court denied his petition for a writ of certiorari. See Johnson v. United States, 118 S. Ct. 1174 (1998).

Johnston timely filed a motion under § 2255, alleging that: 1) the district court erred in finding that Kimela Lomax's testimony was a sufficiently reliable basis for calculating Johnston's sentence; 2) the government violated 18 U.S.C. § 201(c) by paying Lomax between $6,500 and $7,000 for her testimony and by agreeing not to prosecute Roy Patterson in exchange for his testimony; and 3) the prosecutor engaged in misconduct during the trial. Johnston and the government both consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c). The magistrate judge issued a memorandum and order denying Johnston's § 2255 motion. Johnston timely filed a notice of appeal, and he also filed a motion for leave to proceed in forma pauperis ("IFP") on appeal. The magistrate judge construed the notice of appeal as a motion for a COA and denied it, but granted Johnston's IFP motion. Thereafter, Johnston filed the instant COA motion.

II. DISCUSSION

Before considering the substance of Johnston's motion for a COA, we must first address whether the motion is properly before us. Although neither party has challenged the magistrate judge's prerogative to finally adjudicate Johnston's § 2255 motion, we have a "special obligation to 'satisfy [ourselves] not only of [our] own jurisdiction, but also that of the lower courts in a cause under review,' even though the parties are prepared to concede it." United Transp. Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000) (quoting Steel Co. v. Citizens for a Better Env't, 118 S. Ct. 1003, 1013 (1998)).¹ Johnston and the government consented to proceed before a magistrate judge with respect to his § 2255 motion. Whether their consent to proceed before the magistrate judge was sufficient to confer jurisdiction depends on a two-step analysis. United States v. Dees, 125 F.3d 261, 264 (5th Cir. 1997). "First, we must ask whether Congress, in passing legislation governing magistrate judges, intended for them to perform the duty in question." Id. In applying that first step, we should avoid interpreting any legislation governing magistrate judges in such a fashion as to engender constitutional issues if a reasonable alternative posing no such issues is evident. See Gomez v. United States, 109 S. Ct. 2237, 2241 (1989); Commodity Futures Trading Comm'n v. Schor, 106 S. Ct. 3245, 3251 (1986). But if such an alternative is not possible, then we must next consider "whether the delegation of the duty to a magistrate judge offends the principles of Article III of the Constitution." Dees, 125 F.3d at 264. We review each step in turn.

A. Section 2255 is a Civil Matter for Purposes of § 636(c)

Section 636 of Title 28 recites the jurisdiction and statutory authority of a magistrate judge. Subsection (c)(1) provides that upon the consent of the parties, a magistrate judge may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case when specially designated to exercise such jurisdiction by the district court or the courts she serves. 28 U.S.C. § 636(c)(1). Here, the parties consented to proceed before the magistrate judge and the district court had specially designated that a magistrate judge could oversee the present kind of litigation. See General Order No. 80-5, at 2-3 (S.D. Tex. 1980). The question remains whether a § 2255 proceeding constitutes a civil matter for the purposes of § 636(c).

Very few courts have directly addressed this precise issue. In United States v. Bryson, 981 F.2d 720, 723 (4th Cir. 1992), the Fourth Circuit indirectly found that a § 2255 proceeding is a civil matter for purposes of § 636(c) when it concluded in dicta that a magistrate judge could adjudicate a § 2255 proceeding under § 636(c). In reaching the latter conclusion and, consequently, the determination that a § 2255 proceeding is a civil matter for purposes of § 636(c), the Fourth Circuit referenced various decisions from other circuits, including ours, which implicitly held that magistrate judges could adjudicate habeas petitions under §§ 2241 and 2254 via § 636(c). See id. at 724; see also Orsini v. Wallace, 913 F.2d 474, 477 (8th Cir. 1990) ("[T]he plain language of section 636(c) . . . indicates that magistrates, upon consent of the parties and reference by the district court, have jurisdiction to order entry of judgment in a habeas case."); Bullock v. Lucas, 743 F.2d 244, 245 (5th Cir. 1984) (reviewing appeal from magistrate judge's disposition of habeas proceeding conducted under § 636(c)), modified and remanded sub nom., Cabana v. Bullock, 106 S. Ct. 689 (1986); Moore v. Tate, 882 F.2d 1107, 1109 (6th Cir. 1989) (same); Turner v. Henman, 829 F.2d 612, 613 (7th Cir. 1987) (same); Sinclair v. Wainwright, 814 F.2d 1516, 1518-19 (11th Cir. 1987) (same). Habeas petitions have customarily been viewed as civil in nature. Hilton v. Braunskill, 107 S. Ct. 2113, 2118 (1987); Schlanger v. Seamans, 91 S. Ct. 995, 998 n.4 (1971). In referring to those other circuits' decisions about magistrate judges' oversight of habeas petitions, the Fourth Circuit essentially adverted to the similarity between § 2255 and habeas petitions and implied that such a similarity signified that a § 2255 motion is a civil matter that can properly be delegated to a magistrate judge under § 636(c).

In United States v. Hayman, 72 S. Ct. 263 (1952), the Supreme Court discussed the history of the writ of habeas corpus in America and the evolution of § 2255. Id. at 268-72. The Court explained that the distinction between § 2255 and habeas corpus proceedings arose in 1948 when the Judicial Conference persuaded Congress that many of the problems surrounding the administration of federal prisoners' habeas proceedings, such as the availability of a prisoner's records, could be prevented if such proceedings were brought in the sentencing court rather than in the court of the district in which the prisoner was confined. Id. at 271-72; Kaufman v. United States, 89 S. Ct. 1068, 1071 & n.5 (1969). Section 2255 was to "minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum." Hayman, 72 S. Ct. at 272.

Although we have not addressed the specific issue before us, we have generally construed a § 2255 proceeding as being civil in nature. See United States v. Young, 966 F.2d 164, 165 (5th Cir. 1992) (observing that a § 2255 proceeding is governed by the sixty-day limit of Federal Rule of Appellate Procedure 4(a) because such a proceeding is civil); United States v. Buitrago, 919 F.2d 348, 349 (5th Cir. 1991) ("Claims brought under § 2255 are civil actions governed by the sixty-day appeal period of Fed. R. App. P. 4(a)(1)."); cf. United States v. Cooper, 876 F.2d 1192, 1194 (5th Cir. 1989) (noting that to the extent a coram nobis motion is like a § 2255 motion, the former is civil in nature), abrogated on other grounds by Smith v. Barry, 112 S. Ct. 678 (1992). On the other hand, we have at times suggested that § 2255 motions are conceptually distinguishable from habeas proceedings, such as § 2254 petitions, for certain discrete purposes. See United States v. Brierton, No. 98-10382 (5th Cir. Jan. 12, 1999) (unpublished) (concluding that § 2255 motions are distinct from habeas petitions, precluding application of the Suspension Clause); see also Turner v. Johnson, 177 F.3d 390, 392 & n.1 (5th Cir.) (finding in dicta Brierton to be persuasive), cert. denied, 120 S. Ct. 504 (1999). Indeed, § 2255 as enacted recognized some distinction from habeas corpus. See 28 U.S.C. § 2255 (authorizing an application for writ of habeas corpus if a § 2255 motion is "inadequate or ineffective to test the legality of [a prisoner's] detention"); Brendan W. Randall, Comment, United States v. Cooper: The Writ of Error Coram Nobis and the Morgan Footnote Paradox, 74 Minn. L. Rev. 1063, 1072 (1990). The Brierton panel relied on the advisory committee note to Rule 1 of the Rules Governing Section 2255 Proceedings for the United States District Courts to support its determination that the Suspension Clause did not apply to § 2255 proceedings because those proceedings were not habeas petitions. The advisory committee note surmised that "a motion under § 2255 is a further step in the movant's criminal case and not a...