U.S. v. Ortiz

• Decision Date: 24 February 1998
• Docket Number: No. 96-3123,96-3123
• Citation: 136 F.3d 161
• Parties: UNITED STATES of America, Appellee, v. Lionel ORTIZ, a/k/a Carlos, a/k/a Leonel Carlos Ortiz, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 161

136 F.3d 161

329 U.S.App.D.C. 18

UNITED STATES of America, Appellee, v. Lionel ORTIZ, a/k/a Carlos, a/k/a Leonel Carlos Ortiz, Appellant.

No. 96-3123.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 16, 1998.

Decided Feb. 24, 1998.

Catherine E. Lhamon, Washington, DC, argued the cause as amicus curiae on the side of appellant. Steven H. Goldblatt, Washington, DC, appointed by the court, and Stacey Engelbrecht, student counsel, were on the briefs.

Lionel Ortiz, pro se, was on the brief.

John R. Fisher, Assistant U.S. Attorney, Washington, DC, argued the cause for appellee with whom Mary Lou Leary, U.S. Attorney at the time the brief was filed, and James E. Boasberg, Assistant U.S. Attorney, were on the brief. Elizabeth Trosman, Assistant U.S. Attorney, entered an appearance.

Before: EDWARDS, Chief Judge, WALD and ROGERS, Circuit Judges.

ROGERS, Circuit Judge:

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a defendant seeking to file a second motion under 28 U.S.C.A. § 2255 to vacate, set aside, or correct a sentence must first obtain an order from the appropriate court of appeals authorizing the district court to consider the motion. See 28 U.S.C.A. §§ 2244(b)(3)(A), 2255 (West 1994 & Supp.1997). Before AEDPA was enacted, Lionel Ortiz filed his first motion under § 2255, while the direct appeal of his criminal convictions was pending, claiming ineffective assistance of trial counsel in violation of his rights under the Sixth Amendment. The district court denied that motion, and Ortiz did not appeal this denial. After the court affirmed his convictions on direct appeal, see United States v. Ortiz, 82 F.3d 1066, 1068 (D.C.Cir.1996), and after AEDPA took effect, he filed a motion for authorization to file a second § 2255 motion in order to pursue his claim that he was denied his right to the effective assistance of former appellate counsel in his direct appeal. Ortiz contends that applying AEDPA standards to his motion would be impermissibly retroactive and, alternatively, that he meets the AEDPA standards for filing a second motion. We disagree with both contentions. Although Ortiz has shown cause under pre-AEDPA standards for failing to raise his claim of ineffective assistance of appellate counsel at the time he filed his first § 2255 motion, he fails to show prejudice. See McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991). Consequently, having failed to show that he could prevail under pre-AEDPA standards, he fails to show that applying AEDPA standards to his second § 2255 motion would have an improper retroactive effect. Because Ortiz also fails to meet AEDPA standards for filing a second § 2255 motion, we deny his motion for authorization. His further contention that he should be allowed to seek relief under 28 U.S.C. § 2241 is not properly before this court, and we do not address it, and his constitutional challenges to AEDPA are foreclosed by Supreme Court precedent. Finally, we hold that the fee provisions of the Prison Litigation Reform Act of 1995 do not apply.

I.

Enacted on April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, contains provisions changing both the standards and procedures required to pursue the remedy available under 28 U.S.C. § 2255 for federal prisoners seeking relief from illegal confinement. ¹ Previously, when a defendant wished to raise claims in a second or successive § 2255 motion and the government pleaded the defense of "abuse of the writ," the defendant had to show both cause and prejudice: cause for failing to raise the claim earlier, that is, "some objective factor external to the defense [that] impeded counsel's efforts" to raise the claim earlier, and " 'actual prejudice' resulting from the errors of which he complains." McCleskey, 499 U.S. at 493-94, 111 S.Ct. at 1470 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986), and United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982)) (internal quotation marks omitted); accord United States v. Kleinbart, 27 F.3d 586, 592-93 (D.C.Cir.1994). Under AEDPA, a "prisoner" may file a second or successive § 2255 motion only if the appropriate court of appeals first certifies that the motion meets a new set of standards. See 28 U.S.C.A. §§ 2244(b)(3)(A), 2255. Thus, the "prisoner" must show that there is either:

(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.A. § 2255.

Ortiz filed a timely appeal from his convictions of conspiracy to distribute cocaine base, ² distribution of cocaine base, ³ possession with intent to distribute cocaine base, ⁴ and attempted distribution of cocaine base. ⁵ See Ortiz, 82 F.3d at 1068-69. During the pendency of this appeal, he filed his first § 2255 motion to set aside or correct his sentence on the grounds of ineffective assistance of trial counsel. See id. at 1069 n. 7. In his motion, he asserted that trial counsel had been incompetent in five ways: (1) by not pursuing introduction of the testimony of a potential defense witness (Andrea Balbuena) under the exception to the hearsay rule for admissions against penal interest, see FED.R.EVID. 804(b)(3); (2) by not limiting cross-examination of Ortiz's co-defendants when they testified in the government's rebuttal case and thus opening the door to further damaging testimony; (3) by improperly advising him not to testify and informing the district court, without his consent, that he would not; (4) by failing to provide him with an interpreter so that he could communicate with his counsel; and (5) by failing to object to the manner in which a witness was escorted out of the court room. On May 2, 1995, the district court denied the motion without a hearing, finding that, given the "extensive evidence against him," Ortiz would still have been found guilty even had Balbuena's testimony been admitted at trial, had the government's redirect examination of the co-defendants during its rebuttal case not elicited damaging testimony, and had the other alleged errors not occurred. Ortiz did not appeal from the denial of the motion.

Fourteen months later, on April 24, 1996, Congress enacted AEDPA. Six days thereafter, on April 30, 1996, the court affirmed Ortiz's convictions; the court did not reach his ineffective assistance of trial counsel claim because he had waived it by not appealing the denial of his first § 2255 motion. See Ortiz, 82 F.3d at 1068, 1069 n. 7. On September 25, 1996, Ortiz filed the instant motion seeking authorization from this court to file a second § 2255 motion in the district court. ⁶ Ortiz and amicus ⁷ contend that both trial and appellate counsel were incompetent in his criminal trial and that because application of AEDPA standards to his case would be impermissibly retroactive, he should be given leave to file a second § 2255 motion under the pre-AEDPA McCleskey standards. Alternatively, amicus contends that Ortiz satisfies AEDPA's standards for a second § 2255 motion because of newly discovered exculpatory evidence. Amicus further contends that if the court declines to certify Ortiz's second § 2255 motion to the district court, he should be allowed to make a collateral attack on his sentence under 28 U.S.C. § 2241. Ortiz further challenges the constitutionality of AEDPA on the grounds that it violates his right to due process by limiting the writ of habeas corpus and violates the Ex Post Facto Clause of the Constitution. ⁸ The government responds that: applying AEDPA is not unconstitutionally retroactive because Ortiz filed his second motion after the statute took effect; his petition fails to satisfy either criterion for a successive petition under AEDPA; his § 2241 contentions are not properly before the court; and his constitutional arguments are foreclosed by Supreme Court precedent.

We turn first to the retroactivity claim, and upon finding it unpersuasive, we apply AEDPA to Ortiz's motion and then briefly address his remaining contentions.

II.

In general, "congressional enactments ... will not be construed to have retroactive effect unless their language requires this result." Landgraf v. USI Film Products, 511 U.S. 244, 272, 114 S.Ct. 1483, 1500, 128 L.Ed.2d 229 (1994) (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988)) (internal quotation marks omitted). In many situations, however, courts can apply statutes enacted after the events that form the basis of the litigation without violating retroactivity rules, including when the new enactment authorizes prospective relief, alters jurisdictional rules, or alters procedural rules. See id. at 273-75, 114 S.Ct. at 1501-02. But these exceptions are not bright line rules, see id. at 275 n. 29, 114 S.Ct. at 1502 n. 29, and a court must determine, where Congress has not expressly prescribed a statute's proper reach, whether the statute would "impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed," id. at 280, 114 S.Ct. at 1505. The analysis must be case-specific, for "if the application of a term [of a statute] would be retroactive as to [the particular defendant], the term will not be applied." Lindh v. Murphy, 521 U.S. 320, ----, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997).

Congress did not expressly indicate whether the AEDPA amendments to the procedures and standards for filing second § 2255 motions are to be applied in cases where t...