U.S. v. Simmonds, 96-3287

Decision Date14 April 1997
Docket NumberNo. 96-3287,96-3287
Citation111 F.3d 737
Parties97 CJ C.A.R. 550 UNITED STATES of America, Plaintiff-Appellee, v. Christopher SIMMONDS, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Submitted on the briefs: *

Jackie N. Williams, United States Attorney, District of Kansas; Tanya J. Treadway, Assistant United States Attorney, District of Kansas; David S. Kris, Department of Justice, Washington, DC, for Plaintiff-Appellee.

Michael G. Katz, Federal Public Defender; James P. Moran, Assistant Federal Public Defender, Denver, CO, for Defendant-Appellant.

Before BRORBY, HENRY and MURPHY, Circuit Judges.

BRORBY, Circuit Judge.

Mr. Simmonds, a federal prisoner, appeals the United States District Court for the District of Kansas' denial of his motion for post-conviction relief pursuant to 28 U.S.C. § 2255. On appeal, we consider four issues: 1) whether this court should rule on a prisoner's application for a certificate of appealability pursuant to 28 U.S.C. § 2253(c) before requiring the government to file a brief on the appeal's merits; 2) whether 28 U.S.C. § 2254 habeas corpus 1 and 28 U.S.C. § 2255 proceedings are "civil actions" as contemplated by 28 U.S.C. § 1915 of the Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321 (Apr. 26, 1996) 2; 3) whether the one-year time limitation promulgated by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), for filing motions under 28 U.S.C. § 2255 applies to this motion; and 4) whether Mr. Simmonds is entitled to a certificate of appealability pursuant to 28 U.S.C. § 2253(c).

I. FACTS

In 1990, Mr. Simmonds was convicted on two counts of assaulting a corrections officer with a dangerous weapon, in violation of 18 U.S.C. § 111(a)(1), (b), and one count of possessing a prohibited weapon, in violation of 18 U.S.C. § 1791(a)(2). On direct appeal, Mr. Simmonds challenged his conviction on the ground the district court committed plain error in failing to instruct the jury on a diminished capacity defense. This court affirmed Mr. Simmonds' conviction in United States v. Simmonds, 931 F.2d 685, 689 (10th Cir.), cert. denied, 502 U.S. 840, 112 S.Ct. 129, 116 L.Ed.2d 97 (1991). In 1996, Mr. Simmonds filed a pro se motion pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, arguing his counsel was constitutionally ineffective for failing to request jury instructions on intent and diminished capacity. Mr. Simmonds also filed an application to proceed in forma pauperis.

The district court granted the application to proceed in forma pauperis, but denied Mr. Simmonds' motion to vacate without a hearing, concluding the motion was frivolous and untimely under the one-year time limitation in the Antiterrorism and Effective Death Penalty Act. 28 U.S.C. § 2255. Mr. Simmonds filed a notice of appeal, a motion to proceed in forma pauperis, and an application for a certificate of appealability. The district court issued an order denying the certificate of appealability pursuant to 28 U.S.C. § 2253(c). The government filed a motion requesting this court rule on Mr. Simmonds' application for a certificate of appealability prior to requiring the government to file a brief on the appeal's merits. This court took the government's motion under advisement and ordered the government to brief the sequencing issue in its brief addressing the appeal's merits.

II. ISSUES
A. Sequencing of Briefs

We first address whether the circuit court should rule on the prisoner's application for a certificate of appealability under 28 U.S.C. § 2253(c) prior to requiring the government to file a brief addressing the appeal's merits. As amended by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2253(c) provides a prisoner may not appeal a 28 U.S.C. § 2255 motion or final order in a habeas corpus proceeding before a "circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c)(1)(A), (B). This language seems to indicate certificates of appealability should be issued, if at all, only by a circuit justice or judge. 3 Id. The language of this amended statute seems to conflict with Fed.R.App.P. 22(b), which provides the district court judge who entered the judgment "shall either issue a certificate of appealability or state the reasons why such a certificate should not issue"; under Rule 22(b), only after the district court has denied the certificate will the circuit court consider whether the certificate should issue. Id. While the specific language of Fed.R.App.P. 22(b) seems to deal only with habeas corpus proceedings, and not 28 U.S.C. § 2255 motions, the caption of the rule indicates its application to § 2255 motions. See Fed.R.App.P. 22(b) (rule captioned "Habeas Corpus and Section 2255 Proceedings"). Consequently, the statute and rule created confusion as to the district court's role in issuing certificates of appealability.

In an attempt to resolve the apparent conflict, this court issued an emergency order "direct[ing] the district courts to consider the propriety of issuing certificates of appealability in the first instance." Emergency General Order, In re Procedures Regarding the Prison Litigation Reform Act and the Antiterrorist and Effective Death Penalty Act, No. 96-41 (10th Cir. Oct. 1, 1996). 4 Additionally, the order directs if a certificate of appealability is denied by the district court, "petitioner-appellants will be required to brief any request for a certificate of appealability in this court and address the merits of their appeals at the same time. Respondent-appellees shall not file a brief until requested to do so by this court." Id. (citation omitted).

We agree with the government that the circuit court should, in most cases, rule on the certificate of appealability prior to requiring the government's merit brief. This conclusion is supported not only by the plain language of the Emergency Order, but also by the legislative intent of the Antiterrorism and Effective Death Penalty Act. Congress enacted the certificate of appealability provisions in an attempt to curb repetitive filings and to mitigate the burden on taxpayers resulting from such abuses. See 141 Cong.Rec. H1400-02 (daily ed. Feb. 7, 1995) (statement of Rep. Stenholm). Requiring the government to invest time, money, and energy into briefing the merits of an appeal before the circuit court has even ruled on whether it will exercise jurisdiction under 28 U.S.C. § 2253(c), is contrary to the certificate of appealability's intended purpose. As a result, given the plain language of the Emergency Order, coupled with the intent of 28 U.S.C. § 2253(c), we hold the circuit court should rule on whether it will issue a certificate of appealability before requiring the government's merit brief.

However, as mandated by the permissive language in the emergency order, this holding leaves ajar the door of discretion vested in the circuit court; the circuit court may still request the government's merit brief before ruling on a certificate of appealability, especially in those cases the court finds particularly difficult or complex such that a merit brief from the government would significantly aid its decision. Furthermore, as directed in Fed.R.App.P. 22(b), when the district court denies a certificate of appealability, it should provide an aid to the circuit court in evaluating a petitioner's request for a certificate by stating "the reasons why such a certificate should not issue." Nevertheless, barring any unique or difficult cases, the circuit court should rule on a certificate of appealability before requiring the government's brief addressing the appeal's merits.

B. Interpretation of "civil action" in 28 U.S.C. § 1915.

As stated, for purposes of this issue only, we consolidate for consideration and decision Williams v. Henderson, No. 96-1330, 1997 WL 176389 (Order and Judgment, Apr. 14, 1997); consequently, we consider whether in forma pauperis 28 U.S.C. § 2254 habeas corpus (the state prisoner's vehicle for post-conviction relief) or 28 U.S.C. § 2255 proceedings (the federal prisoner's version of habeas corpus) are "civil actions" for purposes of 28 U.S.C. § 1915. We conclude, as at least five other circuits have, they are not. Naddi v. Hill, 106 F.3d 275, 277 (9th Cir.1997) (habeas corpus proceedings are not "civil actions" for purposes of 28 U.S.C. § 1915); United States v. Cole, 101 F.3d 1076, 1077 (5th Cir.1996) (28 U.S.C. § 2255 proceedings are not "civil actions" for purposes of 28 U.S.C. § 1915); Santana, 98 F.3d at 754-55 (same); Martin v. United States, 96 F.3d 853, 855 (7th Cir.1996) (neither habeas nor 28 U.S.C. § 2255 proceedings are "civil actions" for purposes of 28 U.S.C. § 1915); Reyes v. Keane, 90 F.3d 676, 678 (2d Cir.1996) (habeas corpus proceedings are not "civil actions" for purposes of 28 U.S.C. § 1915). 5

Pursuant to 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act, prisoners proceeding in forma pauperis who bring a "civil action" or appeal a judgment in a civil action are required to pay all filing fees 6. The Prison Litigation Reform Act does not define "civil action" for purposes of in forma pauperis litigants and fails to expressly exclude habeas and § 2255 proceedings from its scope. When interpreting a statutory term, a reviewing court must determine whether the language is ambiguous or whether it has a plain meaning; if the statutory language is ambiguous, a court can then resort to legislative history as an aid to interpretation. United States v. Floyd, 81 F.3d 1517, 1523 (10th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 144, 136 L.Ed.2d 91 (1996); United States v. Roberts, 88 F.3d 872, 877 (10th Cir.1996).

Unlike many terms that are easily definable, "civil action" is a term used in many statutes, and its meaning depends on its context within the applicable legislation. Green v. Nottingham, 90 F.3d 415, 417 (10th...

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