U.S. v. Miller, 97-7438

• Decision Date: 22 September 1999
• Docket Number: No. 97-7438,97-7438
• Citation: 197 F.3d 644
• Parties: (3rd Cir. 1999) UNITED STATES OF AMERICA, v. QUENTIN MILLER, A/K/A "Q" QUENTIN MILLER, APPELLANT Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 644

197 F.3d 644 (3rd Cir. 1999)

UNITED STATES OF AMERICA, v. QUENTIN MILLER, A/K/A "Q" QUENTIN MILLER, APPELLANT

No. 97-7438

U.S. Court of Appeals, Third Circuit

Argued: September 22, 1999

Filed November 30, 1999

As amended December 22, 1999.

On Appeal From the United States District Court For the Middle District of Pennsylvania (D.C. Crim. No. 96-cr-00021) District Judge: Honorable William W. Caldwell

James V. Wade, Esquire Federal Public Defender Daniel I. Siegel, Esquire (argued) Assistant Federal Public Defender Middle District of Pennsylvania 100 Chestnut Street, Suite 306 Harrisburg, PA 17101 Counsel for Appellant

David M. Barasch, Esquire United States Attorney Martin C. Carlson, Esquire (argued) Assistant United States Attorney 228 Walnut Street Harrisburg, PA 17108-1754 Counsel for Appellee

Before: Becker, Chief Judge, Garth, Circuit Judge, and Pollak, District Judge.^*

OPINION OF THE COURT

Becker, Chief Judge.

Quentin Miller pled guilty to conspiring to distribute crack cocaine. After this Court reviewed the voluntariness of Miller's plea and affirmed his sentence on direct appeal, he filed two pro se post-conviction motions in the District Court challenging the indictment underlying his conviction. The District Court, acting sua sponte, recharacterized Miller's ineptly drafted motions as a single 28 U.S.C. § 2255 motion and dismissed Miller's claims on their merits.

This kind of recharacterization poses a novel problem of judicial administration. The Antiterrorism Effective Death Penalty Act (AEDPA) bars federal prisoners from attacking their convictions through second or successive habeas corpus petitions except in very limited circumstances. See Pub. L. No. 104-132, Title I, § 105, 110 Stat. 1214, 1220 (1996) (codified at 28 U.S.C.A. § 2255 (West Supp. 1999). Many pro se inmate petitioners are frequent filers of inartfully drafted post-conviction motions. Over the years, district courts have commonly recharacterized such pro se post-conviction motions as § 2255 motions (the statutory means by which federal prisoners attack their sentences on collateral review). This practice developed both for efficiency's sake and out of a sense of fairness to pro se petitioners, whose claims are construed quite liberally. Under the aegis of AEDPA, however, with its sharp limitation on second or successive petitions, if a district court recharacterizes a pro se petitioner's poorly drafted post-conviction motion as a § 2255 petition and dismisses the motion on its merits, the petitioner is effectively barred from later filing a full-fledged collateral attack upon his conviction. Thus, under AEDPA, the practice of liberal recharacterization that once opened the doors of the federal courts to pro se litigants now threatens unintentionally to close them shut.

Following the lead of the Court of Appeals for the Second Circuit, see Adams v. United States, 155 F.3d 582 (2d Cir. 1998), we hold that district courts must first take certain prophylactic measures before recharacterizing a pro se petitioner's post-conviction motion as a § 2255 motion or ruling on a § 2255 motion denominated as such. More specifically, we prescribe that upon receipt of a pro se pleading challenging an inmate's conviction or incarceration--whether styled as a § 2255 motion or not--district courts should issue a form notice to the petitioner regarding the effect of such a pleading in light of AEDPA. This communication should advise the petitioner that he can (1) have his motion ruled upon as filed; (2) if his motion is not styled as a 2255 motion have his motion recharacterized as a § 2255 motion and heard as such, but lose his ability to file a second or successive petitions absent certification by the court of appeals; or (3) withdraw his motion and file one all-inclusive § 2255 petition within the one-year statutory period prescribed by AEDPA in § 2255.

Since the District Court did not give Miller notification of this nature, we will set aside its decision to recharacterize his two post-conviction motions, vacate its order of dismissal, and remand for further proceedings consistent with this opinion.

I.

Miller participated in a conspiracy to transport crack cocaine from Philadelphia to York, Pennsylvania. A grand jury returned a two-count indictment against him: one count for distributing in excess of fifty grams of crack cocaine, 21 U.S.C § 841(a)(1), (b)(1)(A)(iii), and one count for conspiring to distribute in excess of fifty grams of crack cocaine, 21 U.S.C. § 846. Miller, assisted by counsel, entered into a plea agreement with the government with respect to the conspiracy charge.

Unhappy with the calculation of his sentence in the presentence report, Miller, acting pro se, filed a letter with the District Court in an attempt to withdraw his guilty plea before sentencing. He asserted that his attorney had failed to warn him that he would be treated as a career offender. The District Court declined to hold an evidentiary hearing on this issue and denied Miller's motion to withdraw his plea. Miller appealed to this court, challenging the District Court's refusal to allow him to withdraw his guilty plea, which he claimed was involuntary because uninformed. In a not-for-publication memorandum opinion, we rejected Miller's argument. See United States v. Miller, No. 96-7610 (3d Cir. June 16, 1997).

Shortly after this Court's judgment, Miller, again acting pro se, filed two post-conviction motions with the District Court. The first motion requested the dismissal of the underlying indictment, alleging that the prosecutor knowingly used perjured testimony before the grand jury. The second filing was a motion for a new trial under Fed. R. Crim. P. 33, which was apparently based on the same allegation of perjured testimony. As they were styled, Miller's two motions were untimely. A motion for a new trial and a motion to dismiss an indictment cannot be lodged after the defendant has pled guilty and appealed that conviction. The District Court, therefore, treated Miller's "combined motions" as "really just one motion under 28 U.S.C. § 2255 to vacate the defendant's sentence," and rejected them on their merits.

Miller again sought to appeal. He argued in his Application for a Certificate of Appealability and Brief in Support that the indictment against him was based on perjured testimony and that the District Court lacked jurisdiction to hear his case. More importantly, he also asserted that "the district court construing the motion filed as a § 2255 motion denude[d] appellant of his right to file a § 2255 motion to raise other viable issues that are substantive in his case." He requested,

if this court fail [sic] to reach the merits of the denial of the motion below, that the court will "REVERSE" the lower court's order construing the motion filed as a § 2255 motion and allow appellant the opportunity to file a proper § 2255 motion as of right to raise the viable issues that he plans to raise outside the scope of the previous motion to dismiss the indictment.

Miller's appointed appellate counsel filed only an opening brief on his client's behalf. In it, he abandoned Miller's contention that perjured testimony was used against him at the grand jury hearing. Instead, he raised an ineffective-assistance-of-counsel claim, asserting that Miller's counsel prejudiced him in failing to advise him that he would be sentenced as a career offender.

The government makes two arguments in response. First, it contends that Miller's ineffective-assistance-of-counsel argument is time barred. Second, it submits that even if the claim is timely, it has no merit.

II.

A.

The first question before us is whether the District Court properly characterized Miller's two post-conviction motions as 28 U.S.C. § 2255 motions.¹ In addressing this question, we note at the outset that "federal courts have long recognized that they have an obligation to look behind the label of a motion filed by a pro se inmate and determine whether the motion is, in effect, cognizable under a different remedial statutory framework." United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990). This obligation stems from the time-honored practice of construing pro se plaintiffs' pleadings liberally. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972) ("[A]llegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence"); Zilich v. Lucht, 981 F.2d 694, 694 (3d Cir. 1992) ("When . . . plaintiff is a pro se litigant, we have a special obligation to construe his complaint liberally.").

In keeping with these obligations, district courts have "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." Adams v. United States, 155 F.3d 582, 583 (2d Cir. 1998).² Courts engaged in this practice in order to reach the merits of pro se petitions, while avoiding the wasted time and expense of forcing petitioners to redraft their pleadings. Several courts of appeals, including this one, have endorsed this approach as fair and efficient. See, e.g., Tedford v. Hepting, 990 F.2d 745, 749-50 (3d Cir. 1993) (treating § 1983 claim as petition for writ of habeas corpus when validity of plaintiff's criminal conviction was necessarily at issue); United States v. Jordan, 915 F.2d 622, 625 (11th Cir. 1990) (recharacterizing Rule 35 motion as § 2255 motion).

The District Court's recharacterization of Miller's two post-conviction motions comports with the above-mentioned practices. Miller alleged that he discovered new evidence of perjured grand jury testimony that undermined both his conviction and the indictment against him. As do many pro se petitioners, however, Miller failed to state these claims in a manner...