United States v. Clark

• Decision Date: 16 October 2020
• Docket Number: No. 19-3040,19-3040
• Citation: 977 F.3d 1283
• Parties: UNITED STATES of America, Appellee v. Floyd CLARK, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

977 F.3d 1283

UNITED STATES of America, Appellee

v.Floyd CLARK, Appellant

No. 19-3040

United States Court of Appeals, District of Columbia Circuit.

Argued September 18, 2020

Decided October 16, 2020

Steven R. Kiersh, Philadelphia, PA, appointed by the court, argued the cause and filed the brief for appellant.

Daniel G. Randolph, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman, John P. Mannarino, and James Sweeney, Assistant U.S. Attorneys. Suzanne G. Curt, Assistant U.S. Attorney, entered an appearance.

Before: Henderson and Walker, Circuit Judges, and Silberman, Senior Circuit Judge.

Silberman, Senior Circuit Judge:

In this habeas case, both Parties contend that we have appellate jurisdiction—albeit for different reasons. But we think neither Party's arguments are persuasive, so we dismiss the appeal for lack of subject-matter jurisdiction.

I.

We begin with a brief review of the underlying facts: On May 6, 2009, two men abducted Michael Walker at gunpoint in Washington, D.C. They robbed Walker, beat him with their weapon, threatened his family, and demanded $150,000. After leading his kidnappers to a Maryland storage facility where he claimed to keep his money, a bloodied Walker escaped and called the police.

At first, Walker claimed not to know his assailants; but later, he identified Petitioner Floyd Clark as one of the two men. For over a year prior to the attack, Clark had introduced Walker to street-level narcotics dealers in exchange for a cut of the drug proceeds. According to Walker, he initially refrained from naming Clark because he planned to have Clark killed. But Walker ultimately decided that killing Clark wasn't "worth it," and he turned Clark's name over to a D.C. Metro Police detective. J.A. 503. The second abductor was never identified.

On May 15, 2009, a grand jury returned a nine-count indictment against the Petitioner, charging him with kidnapping, 18 U.S.C. § 1201(a)(1), armed carjacking, D.C. Code §§ 22-2803, - 4502, brandishing a firearm in a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii), and various related offenses. The following year, Clark was convicted on all counts in federal court¹ —a verdict based principally on Walker's testimony. The district judge sentenced Clark to 260 months imprisonment, including a mandatory 60 months pursuant to § 924(c)(1).

Four years later, Walker recanted. In a signed affidavit, Walker claimed that he actually did not know who carjacked, kidnapped, and robbed him; and that he only accused Clark because he thought Clark was having an affair with his wife. He also claimed that the police induced him to make up "a story" so that they could "make a case" against Clark. J.A. 1006–07.

In April 2015, Clark moved pro se for habeas relief under 28 U.S.C. § 2255, which authorizes a post-conviction action to set aside a federal sentence imposed in violation of the Constitution or laws of the United States. Clark's pro se habeas application rested on three grounds: (1) Walker's recantation, (2) Ineffective assistance of trial counsel, and (3) Ineffective assistance of appellate counsel. The district court sua sponte appointed counsel for Clark. See 18 U.S.C. § 3006A. Then with the assistance of counsel, Clark supplemented his initial § 2255 motion, claiming that 18 U.S.C. § 924 (c)(1)(A) —which carries a five-year mandatory minimum for brandishing a firearm in any crime of violence—is unconstitutionally vague after the Supreme Court's decision in Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). See also United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2324, 204 L.Ed.2d 757 (2019). Counsel also grounded Clark's recantation claim in the Fifth Amendment's due process clause.

On April 22, 2019, the district court denied Clark's first three claims, but—here is the rub—it reserved the Petitioner's § 924(c) claim for later resolution because, at that time, Davis had not been decided. The judge explained that his opinion "resolves three of Mr. Clark's claims but leaves the [ § 2255 ] motion open until the Court is able to resolve his fourth claim." J.A. 1270.

For a petitioner to appeal the final order in a § 2255 habeas case, § 2253(c)(1) requires him to obtain a certificate of appealability. Accordingly, the week after the district court issued its order, Clark moved for the certificate. The district judge granted the certificate solely on Clark's recantation claim without commenting on the finality of the underlying order—which, of course, left one claim pending.

II.

This case raises an obvious question about our appellate jurisdiction. Can the district judge's order, partially resolving Clark's petition, be considered "final" under § 2253(a)? Petitioner says yes, asserting a right to appeal from a "practically" final order. The government agrees that we have jurisdiction, but reaches that position by urging us to construe Petitioner's habeas motion—despite its specific designation—as a Federal Rule of Criminal Procedure 33 motion for a new trial. A Rule 33 motion, the government asserts, is a separate and independent procedural vehicle from any § 2255 claims, which are civil in character. Then, on the government's theory, the rejection of a Rule 33 motion is its own final order without regard to Clark's pending § 924(c) claim. That leads to the government's kicker—because Rule 33 motions must be brought within three years of a verdict, we should reject Petitioner's " Rule 33" motion as time barred.

Questions of finality typically arise under 28 U.S.C. § 1291, a general statutory grant of appellate jurisdiction. That section provides that "[t]he courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts." (emphasis added). Although § 2253 controls our jurisdiction in habeas cases, see Gonzalez v. Thaler , 565 U.S. 134, 140, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012), it also limits our authority to reviewing only final orders. And the requirement of finality in habeas cases is "no less exacting" than in other contexts.

Andrews v. United States , 373 U.S. 334, 340, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963). Of course, as a jurisdictional prerequisite, we are obliged to consider finality in habeas appeals even if not raised by either party.

Because it leaves Clark's § 924(c) claim pending, the district court's order appears nonfinal on its face. A judgment is typically final only when the whole case is complete. See Ritzen Grp., Inc. v. Jackson Masonry, LLC , ––– U.S. ––––, 140 S. Ct. 582, 586, 205 L.Ed.2d 419 (2020). We consider an order "final" if it "terminates" the case and leaves nothing for the court "but [to] execute the judgment." Id . This final-judgment rule—derived from the common law and codified since the First Congress—has long promoted efficient judicial administration by avoiding the delay and expense of piecemeal appeals. See, e.g. , Mohawk Indus., Inc. v. Carpenter , 558 U.S. 100, 106, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) ; McLish v. Roff , 141 U.S. 661, 665–66, 12 S.Ct. 118, 35 L.Ed. 893 (1891).

Notwithstanding this well-established doctrine, Petitioner relies on an old Supreme Court case, Gillespie v. United States Steel Corp. , 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), which, he claims, "opens the door a little bit" and allows ostensibly nonfinal orders to be regarded as "practically" final. To be sure, Gillespie is a rather confusing case. There, the Supreme Court confronted an important national question: Whether the Jones Act, a federal maritime law governing liability for a seaman's injury or death, preempted state and common law remedies. Id. at 150, 85 S.Ct. 308. The district court, ruling that the Jones Act supplied the exclusive remedy for those cases falling within its purview, struck all parts of the complaint that related to recovery on other theories. Id . at 150–51, 85 S.Ct. 308. But it left the merits of the plaintiff's Jones Act claim for further litigation. Id . The Supreme Court characterized the finality issues as "obviously marginal" (for reasons not particularly apparent). Id . at 154, 85 S.Ct. 308. And it noted that in "marginal cases," courts should weigh the inconvenience of piecemeal review as well as the dangers of delay. Id . at 152–53, 85 S.Ct. 308. The Court then plowed ahead to decide the merits.

Petitioner relies on the Supreme Court's comment in Gillespie where the court called for a "practical rather than technical" construction of finality, id . at 152, 85 S.Ct. 308, language that we have described as dictum, Everett v. US Airways Grp., Inc. , 132 F.3d 770, 774 (D.C. Cir. 1998). But, nearly 15 years later, the Court closed the door on Petitioner's expansive reading of Gillespie . In Coopers & Lybrand v. Livesay , the Court "explained" Gillespie was based, in part, on the Parties’ failure to raise the finality issue until argument on the merits and the "unsettled issue of national significance" presented by the case. 437 U.S. 463, 477 n.30, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978).² To use a labor-relations term, the court "red circled" Gillespie , limiting that case to its unique facts. See id . In Everett , we followed the Supreme Court's admonition and rejected a Gillespie exception to the final-judgment rule. 132 F.3d at 774.³

Even if we were to read Gillespie as providing some "flexibility" in the application of finality, Petitioner's claims, while creative, are fallacious. Petitioner asks us to give significance to the fact that his pending § 924(c) claim was a late addition to his initial, pro se , § 2255 motion. He would have us treat his dismissed claims as totally separate from his § 924(c) claim simply because the latter supplemented his petition. But this distinction does not differentiate Clark's appeal from any other nonfinal order in which a district court has dismissed one potentially dispositive claim or granted partial summary judgment. See, e.g. , Liberty Mut. Ins. Co. v....