U.S. v. Orozco-Ramirez

• Decision Date: 03 May 2000
• Docket Number: No. 98-10090,OROZCO-RAMIRE,D,98-10090
• Citation: 211 F.3d 862
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAVIERefendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 862

211 F.3d 862 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAVIER OROZCO-RAMIREZ, Defendant-Appellant.

No. 98-10090

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

May 3, 2000

Appeal from the United States District Court for the Northern District of Texas

Before POLITZ, GARWOOD and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Javier Orozco-Ramirez (Orozco-Ramirez), currently confined in a federal correctional institute in El Reno, Oklahoma, filed this federal habeas corpus motion in the United States District Court for the Northern District of Texas pursuant to 28 U.S.C. 2255. The district court dismissed his motion as "second or successive" under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Orozco-Ramirez appeals. We affirm in part and reverse in part.

Facts and Proceedings Below

On December 16, 1992, Orozco-Ramirez pleaded guilty to distribution of heroin and conspiracy to distribute heroin in the United States District Court for the Northern District of Texas. On April 14, 1993, he was sentenced to 180 months' imprisonment and a four-year term of supervised release. No notice of appeal was filed.

On January 30, 1995, Orozco-Ramirez filed a federal habeas corpus motion pursuant to section 2255 as to his 1993 conviction and sentence. In that motion, Orozco-Ramirez asserted only one ground for relief: that he received ineffective assistance of counsel in that his attorney did not file a notice of appeal despite having been asked to do so. Following an evidentiary hearing, the magistrate court recommended that Orozco-Ramirez be allowed an out-of-time appeal. The district court adopted this recommendation and on January 22, 1996, ordered an out-of-time appeal. Pursuant to that order, on January 24, 1996, Orozco-Ramirez filed his notice of appeal from the 1993 conviction and sentence. Represented by new counsel, Orozco-Ramirez raised on that direct appeal two issues relating to the quantity of drugs forming the basis of his 1993 sentence. This Court affirmed Orozco-Ramirez's sentence in an unpublished opinion. United States v. Orozco-Ramirez, 101 F.3d 701, No. 96-10120 (5th Cir. Oct. 25, 1996).

On November 3, 1997, Orozco-Ramirez, proceeding pro se and in forma pauperis, filed the instant section 2255 motion ¹ to vacate his 1993 conviction and sentence, asserting numerous errors including ineffective assistance of counsel at his sentencing, ineffective assistance of counsel rendering his guilty plea involuntary, and ineffective assistance of counsel in the course of his out-of-time direct appeal. ² The magistrate court recommended that Orozco-Ramirez's motion be unfiled, because it was "second or successive" and was tendered without authorization from a court of appeals. Adopting the findings and recommendation of the magistrate court, the district court ordered that Orozco-Ramirez's section 2255 motion not be filed. Orozco-Ramirez filed a timely notice of appeal, and this Court granted a certificate of appealability (COA) permitting Orozco-Ramirez's appeal.³ We now affirm in part and reverse in part.

Discussion

Enacted on April 24, 1996, AEDPA ⁴ made it significantly harder for prisoners filing second or successive federal habeas corpus motions to obtain hearings on the merits of their claims. See Graham v. Johnson, 168 F.3d 762, 772 (5th Cir. 1999), cert, denied, ___ U.S. ___, 120 S.Ct. 1830, ___ L.Ed.2d ___, 68 U.S.L.W. (2000). As amended by AEDPA, section 2255 provides in relevant part as follows:

"A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain-

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. 2255.

As amended by AEDPA, section 2244 reads in pertinent part as follows:

"(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.

(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless-

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.

(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.

(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.

(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.

(E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.

(4) A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section." 28 U.S.C. 2244(b).

Orozco-Ramirez does not seek certification of his 1997 section 2255 motion by this Court. Rather, he asserts that his 1997 motion is not subject to AEDPA, and, even if it is, the motion is not "second or successive."We review de novo whether AEDPA applies to Orozco-Ramirez's current habeas motion and whether his motion is "second or successive" under AEDPA. See Graham, 168 F.3d at 772.

A. Impermissible Retroactivity of AEDPA

Orozco-Ramirez first contends that the district court erred in applying AEDPA's more stringent standards to his motion. Orozco-Ramirez argues that because his only prior habeas motion was filed before April 24, 1996 (AEDPA's enactment date) it would be impermissible to apply AEDPA's restrictions on "second or successive" applications to his present post-AEDPA motion. We disagree.

In Graham, we stated that Congress intended for AEDPA to govern applications filed after April 24, 1996. See id. at 782. Several circuits agree with our conclusion. See Trice v. Ward, 196 F.3d 1151, 1158 (10th Cir. 1999) ("We have repeatedly held that the 'AEDPA applies to cases filed after its effective date, regardless of when state court proceedings occurred.'") (quoting Moore v. Gibson, 195 F.3d 1152, 1162 (10th Cir. 1999)); Taylor v. Lee, 186 F.3d 557, 559-60 (4th Cir. 1999) ("[A]ny federal petition for a writ of habeas corpus filed after the signing of the AEDPA on April 24, 1996 is governed by the AEDPA."), cert. denied, 120 S.Ct. 1262 (2000); Mancuso v. Herbert, 166 F.3d 97, 101 (2d Cir.), cert. denied, 119 S.Ct. 2376 (1999) ("We conclude that the AEDPA applies to a habeas petition filed after the AEDPA's effective date, regardless of when the petitioner filed his or her initial habeas petition. . . . [T]his holding comports both with the statute's plain meaning and with congressional intent.") (footnote omitted); Pratt v. United States, 129 F.3d 54, 58 (1st Cir. 1997), cert. denied, 118 S.Ct. 1807 (1998) (applying AEDPA to Pratt's second section 2255 motion filed in 1997 after an initial habeas motion was filed in 1995). ⁵ Orozco-Ramirez filed his current 2255 motion on November 3, 1997. Therefore, AEDPA applies.

B. "Second or Successive" under AEDPA

Orozco-Ramirez next contends that the district court erred in finding his present motion "second or successive" under AEDPA.⁶ As the Supreme Court noted in Lindh, AEDPA is unclear in a number of important respects, including what "constitutes a 'second or successive' application." In re Cain, 137 F.3d 234, 235 (5th Cir. 1998) (per curiam); see also Pratt, 129 F.3d at 60 ("AEDPA does not define the mantra 'second or successive.'"). ⁷ Whether a habeas motion, filed after an initial habeas motion that alleged only ineffective assistance of counsel by failing to file notice of appeal as requested and resulted only in an out-of-time appeal, is "second or successive" under AEDPA presents a question of first impression in this Court. Those of our sister circuits that have considered the issue have not reached a uniform conclusion. Compare In re Goddard, 170 F.3d 435 (4th Cir. 1999), Shepeck v. United States, 150 F.3d 800 (7th Cir. 1998) (per curiam), and United States v. Scott, 124 F.3d 1328 (10th Cir. 1997) (per curiam) (all holding a second habeas motion, filed after an initial motion upon which an out-of-time appeal was granted, was not "second or successive" under AEDPA), with Pratt v. United States, 129 F.3d 54 (1st Cir. 1997) (ruling that AEDPA barred Pratt's second habeas motion as "second or successive" where it was filed after an initial motion which sought only an out-of-time appeal),...