U.S. v. Little

• Decision Date: 22 December 2004
• Docket Number: No. 03-6681.,03-6681.
• Citation: 392 F.3d 671
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Aaron LITTLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

392 F.3d 671

UNITED STATES of America, Plaintiff-Appellee, v. Michael Aaron LITTLE, Defendant-Appellant.

No. 03-6681.

United States Court of Appeals, Fourth Circuit.

Argued: October 26, 2004.

Decided: December 22, 2004.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Neal Lawrence Walters, Charlottesville, Virginia, for Appellant. Douglas Scott Broyles, Assistant United States Attorney, Office of the United States Attorney, Charlotte, North Carolina, for Appellee.

ON BRIEF:

Ethan Greene, Third Year Law Student, University of Virginia School of Law, Appellate Litigation Clinic, Charlottesville, Virginia, for Appellant. Robert J. Conrad, Jr., United States Attorney, Charlotte, North Carolina, for Appellee.

Before WILKINS, Chief Judge, WILLIAMS, Circuit Judge, and CONRAD, United States District Judge for the Western District of Virginia, sitting by designation.

Authorization denied to file a successive § 2255 motion; petition for § 2241 writ dismissed without prejudice by published opinion. Judge Williams wrote the opinion, in which Chief Judge Wilkins and Judge Conrad joined.

WILLIAMS, Circuit Judge:

In a case presenting several procedural conundrums, Michael Little, a federal prisoner appeals the district court's denial of his motion under former Federal Rule of Criminal Procedure 35(a) to correct an illegal sentence.¹ We construe Little's Rule 35(a) motion as a request to file a successive habeas petition under 28 U.S.C.A. § 2244 (West 1994 & Supp.2004) and as a request for sentencing credit under 28 U.S.C.A. § 2241 (West 1994). We deny Little's request for authorization under § 2244 to file a successive motion under 28 U.S.C.A. § 2255 (West 1994 & Supp.2004), and we dismiss Little's § 2241 claim without prejudice for Little to refile in the proper jurisdiction.

I.

Michael Little is a federal prisoner with a long history of litigation in this court.² Little originally pleaded guilty to one count of possession with intent to distribute cocaine, in violation of 21 U.S.C.A. § 841(a)(1) (West 1999), on April 8, 1986, and was sentenced to ten years imprisonment. The April 1986 conviction stemmed from the seizure of 802.26 grams of cocaine and $87,740 in cash from Little's residence in Charlotte, North Carolina on January 10, 1986.

Almost a year later, on March 2, 1987, Little was indicted, along with fifteen other individuals, in a new forty-count indictment. Nineteen counts related to Little. Relevant here, Count One alleged that Little violated 21 U.S.C.A. § 846 (West 1999), by engaging in a conspiracy to possess with intent to distribute cocaine from May 1985 to April 1986; Count Thirty-Three charged Little with violating § 841(a)(1) by possessing with intent to distribute three and one-half kilograms of cocaine on January 10, 1986; and Count Forty charged Little with violating 21 U.S.C.A. § 848(a) (West 1999) by engaging in a Continuing Criminal Enterprise (CCE) from May 1985 to April 1986. The cocaine charged in Count Thirty-Three was seized from the residence of Gary Clark, one of Little's associates and codefendants.

Following a jury trial, on August 19, 1987, Little was convicted of all nineteen counts in the indictment and sentenced to thirty years imprisonment. The thirty-year sentence was to run concurrent with the time he was already serving for the April 1986 conviction. Little's convictions and sentences were affirmed on direct appeal. See United States v. Wingate, 854 F.2d 1318, 1988 WL 83334 (4th Cir. Aug.4, 1988) (unpublished).

Since then, Little has filed numerous motions seeking post-conviction relief. Although an extensive review of Little's endeavors is unnecessary, it suffices to note that the district court found the Rule 35(a) motion giving rise to this appeal, filed on June 17, 2002, was Little's seventh attempt at post-conviction relief.³ Little's Rule 35(a) motion alleged (1) that his convictions and sentences for both Count One and Count Forty in 1987 were "illegal" within the meaning of Rule 35(a) in light of Rutledge v. United States, 517 U.S. 292, 307, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) (holding that double jeopardy precluded conviction for both conspiracy and engaging in a CCE when the conspiracy was used to prove the CCE); and (2) that the Bureau of Prisons (BOP) violated the Double Jeopardy clause by refusing to grant him sentencing credit for the one year served between the 1986 and 1987 convictions.⁴ This latter claim was based on Little's contention that the same cocaine was used to support both his April 1986 conviction and Count Thirty-Three of the 1987 indictment.

On January 10, 2003, the United States District Court for the Western District of North Carolina issued an order denying Little's motion. Despite Little's denomination of the motion as one arising under criminal Rule 35(a), the district court construed it otherwise, finding that the claims were appropriately characterized as civil in nature. The district court first held that Little's request for one year of credit on his sentence arose under 18 U.S.C.A. § 3568⁵ and should be denied because Little failed to exhaust his administrative remedies. The district court construed Little's Rutledge claim as a constitutional attack on his conviction and found that, because Little had previously filed § 2255 motions, it lacked jurisdiction to consider Little's claim. Instead, the district court instructed Little to request authorization to file a successive § 2255 motion in this court. The district court also warned Little that he would be subject to monetary penalty if he continued filing frivolous motions.

The district court mailed its January 10 order to FCI Butner, Little's former address. Little, however, was at that time being housed at a federal medical center in Texas and the order was returned to the court as undelivered.⁶ The district court resent the order, and Little received some correspondence from the district court on February 10, 2003. On February 12, 2003, Little sent a letter to the district court clerk, requesting an update on the status of his case. Little stated that, although he "received a ruling from the Court" on February 10, he believed that this order addressed one of his prior motions. He stated that "[t]o date no response has been received to [the Rule 35(a)] motion." (J.A. at 34A.) Little requested that the district court consider his Rule 35(a) motion and also noted that the court had sent recent correspondence to his former address. Little sent a similar letter to the district judge himself, stating that "you [ ] may have been subjected to reviewing a dated motion," and that "[a] more recent motion [,the Rule 35(a) motion], however, was filed on June 17, 2002." (J.A. at 34C.) On April 11, 2003, the district court mailed the January 10 order again, and Little received it on April 14, 2003. Seven days later, on April 21, Little filed a notice of appeal with the district court.

The district court construed Little's April 21 notice of appeal as a motion under Federal Rule of Appellate Procedure 4(b)(4) (FRAP),⁷ that is, a Motion for Leave to File Untimely Appeal. The district court found that Little received the January 10 order on February 10, 2003, but that he was confused as to its contents at that time.⁸ The district court recognized the ten-day time limitation on filing an appeal in a criminal case, and decided that it would "treat the April 11, 2003 remailing as starting the appeals period anew." (J.A. at 43.) With April 12, 2003 as the start date of the ten-day period, the district court considered Little's April 21, 2003 pro se notice of appeal as timely. On appeal, counsel was appointed for Little.

II.

This case was originally placed on the oral argument calendar for consideration of whether the district court had the power to republish its January 10 order on April 11 to permit Little to effect a timely appeal. Prior to oral argument, we requested supplemental briefing, asking whether the claims in Little's Rule 35(a) motion should be construed as either a successive § 2255 motion or a § 2241 petition, or both. Little argues that his claims are properly cognizable under Rule 35(a), and that his appeal of the district court's order was timely. The Government contends that Little's Rule 35(a) motion should be construed as a § 2241 petition requesting sentencing credit. And, because Little is currently housed in a federal medical center in Texas, the Government requests that we dismiss Little's § 2241 claim for him to refile in the proper venue. In the alternative, the Government argues that, assuming Little's motion is cognizable under Rule 35(a), the district court lacked the power to republish its January 10 order, and Little's appeal of that motion would be untimely.

For the reasons stated in Part III, we agree, in part, with the Government. We conclude that Little's 35(a) motion raises claims that are properly brought under § 2255 and § 2241. On Little's § 2241 claim for sentencing credit, the Western District of North Carolina is not the proper venue to consider that claim because Little is currently incarcerated in a federal medical center in Texas. Accordingly, we dismiss that claim without prejudice. Turning to Little's § 2255 claim, because Little has already litigated a § 2255 motion, we treat his appeal of the district court's ruling in this case as a request for authorization to file a successive § 2255 motion and deny that request. For the reasons discussed in Part IV, even if we were to credit Little's argument that his claims arise under Rule 35(a), we would lack jurisdiction to consider it because Little's appeal of the denial of that motion would be untimely.

III.

Former Federal Rule of Criminal Procedure 35(a) provided that "[t]he court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence." Fed.R.Crim.P. 35(a) (West 1976). Rule 35(a) motions are...