U.S.A v. Underwood

• Decision Date: 17 February 2010
• Docket Number: No. 08-31243.,08-31243.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lee E. UNDERWOOD, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

597 F.3d 661

UNITED STATES of America, Plaintiff-Appellee, v. Lee E. UNDERWOOD, Jr., Defendant-Appellant.

No. 08-31243.

United States Court of Appeals,

Fifth Circuit.

Feb. 17, 2010.

COPYRIGHT MATERIAL OMITTED

Cristina Walker, Asst. U.S. Atty Shreveport, LA, for Plaintiff-Appellee.

Dmitrc Ian Burnes, Burnes, Burnes &amp Talley, Alexandria, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana.

Before JOLLY, WIENER, and BARKSDALE, Circuit Judges.

RHESA H. BARKSDALE, Circuit Judge:

Lee E. Underwood appeals the denial of his 28 U.S.C. § 2255 motion to vacate, in which he claimed a due-process violation because a magistrate, not district, judge presided over his plea hearing without express consent. Pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA), the district court granted a certificate of appealability (COA) on whether Underwood procedurally defaulted by failing to raise his due-process claim on direct appeal. We do not reach procedural default, basing our decision instead on the subsumed issue of implied consent. AFFIRMED.

I.

Underwood was indicted for methamphetamine conspiracy in December 2004. See 21 U.S.C. § § 841(a)(1) and 846. He entered into an agreement to plead guilty and, pursuant to 28 U.S.C. § 636(b)(3), the district court entered an order on 22 March 2005, referring Underwood's plea allocution to a magistrate judge.

Approximately one week later, on 28 March, the magistrate judge conducted the plea colloquy for Underwood, pursuant to Federal Rule of Criminal Procedure 11. Underwood was represented by counsel. At the close of the proceeding, the magistrate judge asked Underwood: "You do understand that I'm the magistrate judge [and that] my acceptance of your guilty plea is subject to [the district judge's] final approval?" Underwood responded that he did. Neither he nor his attorney raisedany objections, before or during the proceeding, to the magistrate judge's conducting it.

A few days later, on 31 March, the magistrate judge submitted her report and recommendation to the district court, recommending that the plea be accepted. No objections were filed.

That May, the district court adopted the report and recommendation and accepted Underwood's guilty plea. He was sentenced to, inter alia, 262 months' imprisonment.

Underwood appealed only his sentence. In other words, his appeal did not challenge the magistrate judge's authority to conduct the plea proceeding. Our court affirmed. United States v. Underwood 194 Fed.Appx. 215, 217 (5th Cir.2006) (unpublished), cert, denied, 549 U.S. 1144, 127 S.Ct. 1010, 166 L.Ed.2d 761 (2007).

In January 2008, Underwood filed his § 2255 motion, claiming, for the first time he had been denied due process when his plea proceeding was conducted by a magistrate judge. The motion was referred to the same magistrate judge who conducted the 2005 plea proceeding. Following a conference in chambers, that magistrate judge held a very brief evidentiary hearing, at which Underwood testified that the remedy he sought was a new trial. At this hearing, Underwood was represented by different attorneys from the one who had represented him when he pled guilty. That former counsel did not testify at the § 2255 hearing.

In her report and recommendation, the magistrate judge recommended denying Underwood's motion on the basis that a magistrate judge may preside over a plea colloquy without the defendant's consent, if there is no objection. Underwood filed an objection "to the finding that consent is not required and to the recommendation that his motion be denied".

In denying the § 2255 motion, the district court did not adopt the magistrate judge's recommended basis for doing so. Instead, the district court ruled that Underwood had procedurally defaulted his due-process claim by failing to raise it on direct appeal. United States v. Underwood, 2008 WL 4628254, at *1 (W.D.La.17 Oct.2008).

Underwood requested a COA for the following issues: "whether a subject matter jurisdictional defect can be waived or procedurally defaulted"; and, "whether Underwood has shown prejudice when he stated that the relief he seeks on his § 2255 motion is to go to trial and not to plead, that is, was the trial court incorrect in assuming he would have plead [sic] guilty before the district judge". The district court granted Underwood a COA only on the procedural-default question.

II.

The Government, which is not required to obtain a COA in order to raise an issue on appeal, see Federal Rule of Appellate Procedure 22(b)(3), does not present one. Accordingly, the only issue raised on appeal by a party is the one for which a COA was granted Underwood. Nevertheless as discussed infra, we first address the question of implied consent for the magistrate judge to conduct the plea proceeding.

A.

A threshold question is our jurisdiction to consider the implied-consent issue. E.g., Castaneda v. Falcon, 166 F.3d 799, 801 (5th Cir.1999) (noting "[w]e must always be sure of our appellate jurisdiction and, if there is doubt, we must address it, sua sponte if necessary"). Again, the only issue raised by either side is found in the COA granted Underwood and involves procedural default. In this regard, under AEDPA, our court lacks jurisdiction to review an issue not presented by Underwood's COA. See United States v. Daniels, 588 F.3d 835, 836 n. 1 (5th Cir.2009) (holding that, in the context of an appeal from a 28 U.S.C. § 2255 denial, "[w]e have jurisdiction to address only the issue specified in the COA"); see also Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir.1997); 28 U.S.C. § 2253.

1.

The COA at hand is whether "a defect in subject matter jurisdiction can be procedurally defaulted". (Emphasis added.) That issue necessarily is predicated upon two sub-issues: whether Underwood's failure expressly to consent to the magistrate judge's conducting the plea proceeding constitutes the "defect in subject matter jurisdiction" referenced in his COA; and, if so, whether Underwood otherwise failed to consent. Therefore, Underwood's consent vel non is subsumed in the COA. Accordingly, our court has jurisdiction to consider this question. See, e.g., Prieto v. Quarterman, 456 F.3d 511, 516-17 (5th Cir.2006) (concluding issue of whether district court could raise procedural default sua sponte was included within COA on state prisoner's challenge to district court's application of procedural-default rule).

2.

Another potential hurdle to our consideration of consent is that, as noted, the issue is not raised for this appeal by either party. Nevertheless, "[t]he matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases". Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). Here, where there is no dispute that Underwood did not object to the magistrate judge's conducting the plea proceeding, and where our court may avoid more difficult constitutional issues by ruling on consent (a less difficult constitutional issue), consideration of this issue sua sponte is appropriate. E.g., Ashwander v. Tenn. Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) ("The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.")

B.

A district court's factual findings in its denial of a § 2255 motion are reviewed only for clear error; its conclusions of law, de novo. E.g., United States v Molina-Uribe, 429 F.3d 514, 518 (5th Cir. 2005). In the context of a magistrate judge's presiding over a proceeding, whether failing to object constitutes implied consent is a question of law. See Roell v. Withrow, 538 U.S. 580, 585, 123 S.Ct. 1696, 155 L.Ed.2d 775 (2003) (considering de novo whether, under 28 U.S.C. § 636(c)(1), parties could convey consent by their conduct, when a magistrate judge presided over their civil trial). To determine whether Underwood consented, by failing to object to the magistrate judge's presiding, we must consider whether this form of consent is sufficient under both the relevant statute and Article III of the Constitution.

1.

The provision at issue is found in 28 U.S.C. § 636(b)(3), which is part of the Federal Magistrates Act, Pub.L. No. 90578, 82 Stat. 1107 (1968) (as amended). Subpart (b)(3) provides: "A magistrate judge may be assigned such additionalduties as are not inconsistent with the Constitution and laws of the United States". In a very comprehensive opinion in United States v. Dees, 125 F.3d 261 (5th Cir.1997), our court considered whether "such additional duties" include conducting plea proceedings. Dees provided the test for whether a magistrate judge's activity is statutorily authorized under § 636(b)(3) when it "bears some relationship to the duties that the [Federal Magistrates] Act expressly assigns to magistrate judges". Id. at 265 (citing Peretz v. United States, 501 U.S. 923, 930-31, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991); Gomez v. United States, 490 U.S. 858, 864, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989)).

Applying this test, Dees held plea proceedings were sufficiently related to pre-trial hearings on the voluntariness of pleas, which, under United States v. Rojas, 898 F.2d 40 (5th Cir.1990), are specifically authorized under § 636(b)(1). Dees, 125 F.3d at 265. In other words, pursuant to Dees, the magistrate judge had the authority under § 636(b)(3) to conduct Underwood's plea allocution.

a.

Dees, however, was silent on whether consent is necessary for a magistrate judge's conducting a plea proceeding to be authorized under § 636(b)(3) (although, as discussed infra, Dees did hold consent is required in the context of Article III). Four Supreme Court cases, however, have addressed whether 28 U.S.C § 636 requires...