U.S. v. Talk

• Citation: 158 F.3d 1064
• Decision Date: 11 September 1998
• Docket Number: No. 97-2088,97-2088
• Parties: 98 CJ C.A.R. 4996 UNITED STATES of America, Plaintiff-Appellee, v. Roger Andrew TALK, a/k/a Roderick Talk, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1064

158 F.3d 1064

98 CJ C.A.R. 4996

UNITED STATES of America, Plaintiff-Appellee, v. Roger Andrew TALK, a/k/a Roderick Talk, Defendant-Appellant.

No. 97-2088.

United States Court of Appeals, Tenth Circuit.

Sept. 11, 1998.

Mary Y.C. Han, Albuquerque, NM, for Defendant-Appellant.

James T. Martin, Assistant U.S. Attorney (John J. Kelly, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before BRISCOE, McKAY and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Roger Andrew Talk moves this court to vacate his sentence pursuant to 28 U.S.C. § 2255. His motion is based on Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), which, he argues, changed the standard of review applied on appeal to a sentencing court's departure from the sentencing guidelines. More precisely, he argues that under Koon this court erred by rejecting downward departures awarded to him on two occasions by the United States District Court for the District of New Mexico. According to appellant, had we reviewed those departures under the correct standard of review, we would have upheld them--thus, his current sentence, based as it is on an erroneous reversal of all downward departures entertained by the sentencing court, would have to be vacated.

I

Convicted of aggravated sexual abuse, Talk was sentenced to a term of imprisonment, with no upward or downward departures. Both Talk and the government appealed his sentence, which was reversed and remanded for vacation and resentencing on the grounds that an adjustment for acceptance of responsibility was unwarranted and an enhancement for use of force was required. See United States v. Talk, 13 F.3d 369 (10th Cir.1993) ("Talk I ").

At resentencing, the district court departed downwards because (1) Talk's criminal conduct was a single act of aberrant behavior and (2) Talk had strong family and community ties and responsibilities. In response to the government's appeal, this court reversed and remanded, ordering that Talk's sentence be vacated and that he be resentenced at the offense level that would have applied in the absence of the downward departure. See United States v. Talk, 47 F.3d 1178, 1995 WL 66583, at * 1 (10th Cir. Feb.7, 1995) ("Talk II ").

At resentencing, however, the district court once again granted defendant's motion for a downward departure, finding that "there is new information not previously considered by this Court or the Tenth Circuit Court of Appeals in determining the appropriateness of a downward departure." See I R., tab 98, at 2. The court relied on a combination of factors for this decision, including the defendant's family ties, educational accomplishment, employment record, lack of criminal history, and temperance. Id. On appeal, we once again reversed, noting that "Congress has divested judges of [the] latitude" at sentencing shown in Talk's case. See United States v. Talk, 72 F.3d 139, 1995 WL 712678, at * 1 (10th Cir. Dec.4, 1995) ("Talk III "). Further, we determined that the district court was bound by the terms of our mandate in Talk II not to depart below the offense level specified therein. Consequently, we remanded for resentencing in accordance with Talk II. Id. at * 1-2.

At his third and final resentencing, the district court denied the defendant a downward departure. No appeal was taken. Once Koon was handed down, however, Talk filed the present § 2255 motion, claiming error in Talk II and Talk III in the appellate court's application of an insufficiently deferential standard of review to the sentencing court's downward departures. He argues that this erroneous review violates his constitutional rights to due process, resulting in substantial injustice. The district court, though recognizing the tension between Koon and both Talk II and Talk III, denied the motion, finding that "[t]his court is not in a position to reverse the Tenth Circuit's clear directive." See I R., tab 12, at 6; id. at tab 14. The district court granted Talk a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A) & (B). He now appeals.

II

We first consider three procedural obstacles to Talk's present appeal: procedural bar, certification of appealability, and law of the case. In the peculiar circumstances of this case, Talk surmounts the first two of these obstacles. Law of the case, however, appears to preclude any claim of error based on Talk II 's consideration of family ties and responsibilities.

A

Though Talk has already appealed his sentence three times, he has not raised the question at hand. "A defendant who fails to present an issue on direct appeal is barred from raising the issue in a § 2255 motion, unless he can show cause for his procedural default and actual prejudice resulting from the alleged errors, or can show that a fundamental miscarriage of justice will occur if his claim is not addressed." United States v. Allen, 16 F.3d 377, 378 (10th Cir.1994) (citing United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). However, if the government fails to raise Frady 's procedural bar until the appellate level, it is not entitled to disposition on those grounds. See id. at 379; see also United States v. Hall, 843 F.2d 408, 410 (10th Cir.1988) (holding that because government failed to raise Frady defense before district court and on appeal, it is deemed "to have waived its interest in the finality of the judgment"). We may raise Frady sua sponte if doing so will further " 'the interests of judicial efficiency, conservation of scarce judicial resources, and orderly and prompt administration of justice.' " Allen, 16 F.3d at 378-79 (quoting Hines v. United States, 971 F.2d 506, 509 (10th Cir.1992)). Where these interests are not furthered, however, we can simply address the merits of the petition. See id. at 379.

In this case, the government failed to raise this defense before the district court. Moreover, substantial resources have already been spent by both sides in litigating the merits, so procedural disposition may be inefficient. See Hardiman v. Reynolds, 971 F.2d 500, 503 n. 5 (10th Cir.1992). We therefore exercise our discretion not to raise a procedural bar to Talk's motion.

B

Talk commenced this collateral attack on August 30, 1996, so it is governed by the requirement in the Antiterrorism and Effective Death Penalty Act that a certificate of appealability be issued prior to appeal. See 28 U.S.C. § 2253(c)(1)(B). Certificates of appealability may be issued by district courts. See United States v. Simmonds, 111 F.3d 737, 741 & n. 4 (10th Cir.1997). Such certification may issue only when a petitioner "ma[kes] a substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(2). In addition, the certificate "shall indicate which specific issue or issues satisfy [this] showing." § 2253(c)(3).

The district court issued a certificate of appealability that certainly fails to satisfy this last requirement. Further, it is by no means obvious that Talk made a substantial showing of the denial of constitutional right. But the government fails to raise any objection to the district court's certification, and, although the absence of a certificate precludes an appeal, an erroneously-issued certificate does not deprive us of jurisdiction to hear a certified appeal. See Young v. United States, 124 F.3d 794, 799 (7th Cir.1997).

The certificate is a screening device, helping to conserve judicial (and prosecutorial) resources.... But once the briefs have been written and the case heard, there is little point in scrutinizing the certificate of appealability. An obligation to determine whether a certificate should have been issued, even if the parties do not present this issue for decision--a step entailed by the conclusion that a proper certificate is a jurisdictional requirement--would increase the complexity of appeals in collateral attacks and the judicial effort required to resolve them, the opposite of the legislative plan.

Id. Accordingly, we do not raise the validity of the certificate sua sponte.

C

The magistrate judge, and by adoption the district court, held that the district court was not free to ignore the prior mandate of this court in Talk II. See Appellant's Br., App. 1, at 6 ("[T]he court is mindful of the Tenth Circuit's explicit directive to resentence Talk to level 31."). Though not stated explicitly, we have no doubt that the rationale for refusing the requested § 2255 relief was law of the case. See id. ("This Court is not in a position to reverse the Tenth Circuit's clear directive.").

If Koon does work an intervening change in the standard of review applicable to downward departures, however, that "may serve as a cogent reason for relaxing the doctrine of the law of the case." United States v. Platero, 72 F.3d 806, 811 (10th Cir.1995). Indeed, a court of appeals errs by holding that law of the case, as determined in an earlier appeal from conviction, precludes a petitioner from securing relief under 28 U.S.C. § 2255 on the basis of an intervening change in the law. See Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). Consequently, the law of the case, as relied on by the magistrate judge and district court, will only apply if Talk's § 2255 motion is not sustainable on its merits.

The government also argues, however, that Talk I correctly reviewed the district court's initial refusal to downward depart. As the government reads that case, the district court refused in its discretion to grant Talk a downward departure. Appellee's Br. at 21. Consequently, that decision should continue to control the outcome of this case, regardless of the strength of any Koon-based claims against Talk II or Talk III. Although this claim is meritless in part, we agree that Talk I does preclude Talk's collateral attack on Talk II 's denial of a departure based on family ties and responsibilities.

By...