U.S. v. Palmer

• Decision Date: 19 July 2002
• Docket Number: No. 00-3020.,00-3020.
• Parties: UNITED STATES of America, Appellee, v. Michael PALMER, a/k/a James, a/k/a Knot, a/k/a Tony, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

296 F.3d 1135

UNITED STATES of America, Appellee, v. Michael PALMER, a/k/a James, a/k/a Knot, a/k/a Tony, Appellant.

No. 00-3020.

United States Court of Appeals, District of Columbia Circuit.

Argued February 20, 2002.

Decided July 19, 2002.

As Amended September 17, 2002.

Appeal from the United States District Court for the District of Columbia (No. 89cr00036-01).

Sandra G. Roland, Assistant Federal Public Defender, argued the cause for the appellant. A. J. Kramer, Federal Public Defender, was on brief.

David B. Goodhand, Assistant United States Attorney, argued the cause for the appellee. Kenneth L. Wainstein, United States Attorney at the time the brief was filed, and John R. Fisher and Thomas J. Tourish Jr., Assistant United States Attorneys, were on brief. Mary-Patrice Brown, Assistant United States Attorney, entered an appearance.

Before: HENDERSON, RANDOLPH and ROGERS, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Michael Palmer (Palmer) appeals the dismissal of his petition to vacate his criminal conviction. In particular, he challenges the district court's holding that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996) (codified in various sections of Title 28 of the United States Code), applies to his petition notwithstanding, he argues, that it merely amends a pre-AEDPA section 2255 petition filed on his behalf by the Office of the Federal Public Defender (FPD). Palmer also contends that his motion for a new trial, made under Federal Rule of Criminal Procedure 33 and recharacterized by this court sua sponte as a section 2255 petition, does not constitute a "first" section 2255 petition and thus the district court wrongly concluded that his current section 2255 petition is "successive" within the meaning of the AEDPA. This case raises an issue of first impression in our circuit: whether this court's (or a district court's) treatment of a federal prisoner's motion for any post-conviction relief (including a new trial) as a section 2255 petition renders a subsequent section 2255 petition "second or successive" and thus governed by the AEDPA's procedural limitations. While we agree that the AEDPA applies to Palmer's section 2255 motion, we nonetheless conclude that his motion is not successive and therefore reverse the dismissal of Palmer's motion, remanding for further proceedings.

I.

In a 23-count indictment filed in 1989, the United States charged Palmer and seven co-defendants with multiple narcotics and firearm offenses. Following a jury trial, Palmer was convicted on 12 counts, including conspiracy to distribute, and to possess with intent to distribute, cocaine base and cocaine powder in violation of 21 U.S.C. § 846; operating a continuing criminal enterprise which involved the distribution of at least 1500 grams of cocaine base in violation of 21 U.S.C. § 846(b); conspiracy to use and carry firearms during and in relation to drug trafficking offenses in violation of 18 U.S.C. § 924(c); and use of juveniles in drug trafficking in violation of 21 U.S.C. § 861. On October 18, 1989 he was sentenced to life without parole plus twenty years, and ten years' supervised release. He was also ordered to pay a special assessment fee of $1,050. Palmer subsequently appealed his conviction, which this court affirmed in United States v. Harris, 959 F.2d 246 (D.C.Cir.), cert. denied, 506 U.S. 933, 113 S.Ct. 364, 121 L.Ed.2d 277 (1992).

On September 15, 1995 Palmer filed pro se his first post-conviction motion. It was entitled "Motion for New Trial Newly Discovered Evidence" and sought a new trial "pursuant to Federal Rules of Criminal Procedure, Rule 33, and USCA title 18." (Rule 33 Motion). Palmer alleged that he was "critically prejudiced" by the introduction into evidence of photographs of himself and Raymond Morant brandishing firearms, which photographs led the jury, wrongly according to Palmer, to believe that the firearms belonged to him. See Rule 33 Motion at 1. Attached to the Rule 33 Motion was an affidavit signed by Raymond Morant asserting that, while Palmer was present when Morant purchased four guns in Pennsylvania, it was Morant, not Palmer, who made the purchase and owned the guns. Id., Exh. A. Acknowledging that the Rule 33 Motion was untimely, Palmer asserted the delay resulted from "[e]xcusable [n]eglect." Id. at 1. On December 5, 1995 the district court summarily denied the Rule 33 Motion. See December 5, 1996 Order.¹ Palmer appealed and the government, in opposition, argued that the district court had properly denied the motion as "untimely." Gov't Br. in United States v. Palmer, No. 95-3204 (1995) at 8-9. The government further asserted that even if the district court had considered the motion on the merits, it would have rejected the motion. Id. at 10. In an unpublished opinion, we affirmed the district court. See United States v. Palmer, 97 F.3d 593, 1996 WL 525586 (D.C.Cir. 1996). We initially noted that, "[a]lthough Palmer's motion for a new trial based on newly discovered evidence is untimely under Federal Rule of Criminal Procedure 33, his request for a new trial can be treated as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255." Id. Assessing the merits, we stated that "[t]he evidence Palmer relies on for his claim that he had no connection to the guns bought by Raymond Morant is not newly discovered" because the information included in the Morant affidavit "was made available to the defense prior to trial and ... Morant, in fact, did discuss his possible testimony with Palmer's trial counsel." Id. We further opined that the "prosecutorial overreaching" and "ineffective assistance of trial counsel" claims were "insufficient to entitle him to relief under 28 U.S.C. § 2255." Id.

On April 22, 1996, two days before the AEDPA became effective, a lawyer in the FPD's Office filed a petition entitled "Motion to Vacate Conviction Pursuant to 28 U.S.C. § 2255" (FPD 2255 Motion), purportedly on Palmer's behalf. It raised a single claim under Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995),² seeking to vacate his conviction on the section 924(c) count (using/carrying a firearm "during and in relation" to a "drug trafficking crime").³ The FPD did not, however, contact Palmer before, or even after, filing the motion. Palmer learned of the FPD 2255 Motion only when he received a copy of the docket sheet from the district court clerk of court in July 1996. See July 5, 1996 Palmer Motion to Dismiss at 1 ¶ 2-4. At that point, Palmer, again proceeding pro se, moved to dismiss the FPD 2255 Motion declaring that "the federal defender's office filed a [section 2255] motion regarding a single issue of violation under 18 U.S.C. 924(c), without consultation with defendant concerning other issues" and thus "has placed defendant with the possibilities of any further petition being denied as successive." Id. at 2 ¶ 5-6.

While his motion to dismiss was pending, Palmer filed another motion pro se, this one entitled "Motion to Amend." He explained that he now wanted to "adopt[]" the FPD 2255 Motion. See April 8, 1997 Motion to Amend at 2. He further requested permission to "[a]mend this action in the bounds of justice and equal protection." Id. Along with the motion to amend, Palmer filed pro se a sixty-seven page motion entitled "Motion to Vacate Conviction" pursuant to 28 U.S.C. § 2255. He raised ten additional claims involving numerous evidentiary, sentencing and constitutional issues but making no specific reference to the Bailey claim raised in the FPD 2255 Motion. See April 8, 1997 Motion to Vacate Conviction (Palmer 2255 Motion). On June 2, 1997 the district court issued an order granting Palmer's motion to dismiss the FPD 2255 Motion without referring to his subsequent motion to amend (Dismissal Order). The Dismissal Order denied two of the claims raised in the Palmer 2255 Motion as "previously rejected on direct appeal" and required the government to respond to Palmer's remaining claims within twenty days from the date of the order. See June 2, 1997 Dismissal Order at 1-2. Palmer did not seek reconsideration of the Dismissal Order nor did he file a notice of appeal.

As required by the Dismissal Order, the government responded to Palmer's 2255 Motion on June 12, 1997. Relying on this court's decision in United States v. Palmer, supra, the government argued that this court had "deemed defendant's [Rule 33] motion simultaneously as a motion for new trial and as a motion to vacate sentence under 28 U.S.C. section 2255." Government's Opposition to Defendant's Motion to Vacate, Set Aside or Correct Sentence at 3. The government further argued that "[s]ince this is the defendant's second section 2255 motion[,] it is subject to" the procedural limitations of the newly-enacted AEDPA. Id. at 3-4. Even if the AEDPA was not applicable, the government contended that the Palmer 2255 Motion violated the "abuse of the writ doctrine"⁴ and thus was not cognizable in district court. See id. at 4 (citing McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)).

On June 23, 1997 Palmer filed pro se a reply entitled "Response to Government's Opposition to Petitioner's 28 U.S.C. § 2255," asserting that the Rule 33 Motion was dismissed as untimely only and further that his 2255 motion was not "successive" because it "supplement[ed]" the FPD 2255 Motion. The FPD separately filed a supplement to Palmer's pro se reply, adopting Palmer's position that his 2255 motion was not a "new submission, but merely an amendment" and adding that "Palmer's Motion[] to Amend relate[s] back to the April 22, 1996 [FPD 2255] Motion filed on his behalf." July 22, 1997 Supplemental Reply to Government's Opposition to Motion to Vacate at 1 ¶ 1. In a second supplemental reply to the government's opposition, the FPD further...