United States v. Doe

• Decision Date: 09 December 2015
• Docket Number: No. 13–4274.,13–4274.
• Citation: 810 F.3d 132
• Parties: UNITED STATES of America v. John DOE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

810 F.3d 132

UNITED STATES of America

v.John DOE, Appellant.

No. 13–4274.

United States Court of Appeals, Third Circuit.

Argued Jan. 12, 2015.

Opinion filed: Dec. 9, 2015.

William C. Kaczynski, Esquire, (Argued), Pittsburgh, PA, Counsel for Appellant.

David J. Hickton, United States Attorney, Laura S. Irwin, (Argued), Assistant U.S. Attorney, Rebecca R. Haywood, Esquire, Margaret E. Picking, Esquire, Office of United States Attorney, Pittsburgh, PA, Counsel for Appellee.

Before: AMBRO, FUENTES, and ROTH, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Contents

Procedural and Legal History

I.	Introduction	138
II.	139
III.	Summary of Our Decision	142
IV.	Standards of Review and Jurisdiction	142

A.	Mootness	143
B.	Jurisdiction to Grant a COA	143
C.	Should We Grant a COA?	144

1.	Begay's Arguably Constitutional Dimension	146
2.	Doe's Arguably Meritorious Begay Claim	147
3.	The District Court's Arguably Wrong Procedural Holdings	148
4.	Conclusion With Respect to COA	148

D. Cognizability as a Jurisdictional Limit 148

V.	Did the 2008 Motion Count Such That Any Later Motion Was Second or Successive?	149
VI.	Statute of Limitations	150
VII.	Was Doe Entitled to Rule 60 Relief?	151
VIII.	Procedural Default	153
IX.	Retroactivity	154
X.	Cognizability	154

A.	Supreme Court Guidance	155
B.	Seventh Circuit	156
C.	Fourth Circuit	156
D.	Eleventh Circuit	157
E.	Eighth Circuit	157
F.	Our Dicta	157
G.	The Government's Argument	158
H.	Synthesis and Conclusion With Respect Cognizability	159

XI.	Savings Clause	160
XII.	Conclusion	161

"The whole thing was a very cleverly planned jigsaw puzzle, so arranged that every fresh piece of knowledge that came to light made the solution of the whole more difficult."—Agatha Christie, Murder on the Orient Express.

"It's like kind of complicated to me"—John Doe, on the withdrawal of his § 2255 motion.

I. Introduction

John Doe, whose identity we protect because he is a Government informant, appeals from the denial of (1) a 28 U.S.C. § 2255 motion filed in 2012 and (2) a request made in 2013 to reopen a § 2255 motion filed in 2008. Doe was sentenced pursuant to the then-mandatory Sentencing Guidelines as a "career offender" on the basis of two convictions for simple assault in Pennsylvania. He argued in his 2008 motion that his convictions were not "crimes of violence" within the meaning of the Guidelines and thus he was not a career offender. Our precedent foreclosed that argument when he made it, but, in light of the Supreme Court case Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), we reversed ourselves, and Doe's argument became plausible. He therefore filed another § 2255 motion, but it too was denied.

This case presents many procedural complexities of first impression within this Circuit. If Doe can manage the Odyssean twists and turns of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), including the Scylla of the second-or-successive bar and the Charybdis of the statute of limitations, he may find a meritorious claim at the end of his journey. However, we do not definitively reach the merits here and instead remand to let Doe's case continue its uncertain course.

II. Procedural and Legal History

In 1991 Doe pled guilty in Pennsylvania to cocaine possession. In 1996 and 2000 (also in Pennsylvania), he pled guilty to two simple assaults. In 2003, he pled guilty in federal court to distribution and possession with intent to distribute at least five grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) (2000). Doe was sentenced to 262 months' incarceration pursuant to the then-mandatory Sentencing Guidelines and case law that has since been overruled. This is the sentence he now attacks.

The Sentencing Guidelines provide a significant enhancement for "career offenders," defined as those with "at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a)(3). Doe's 1991 drug conviction was not relevant to the career-offender designation because it occurred more than 10 years before his federal conviction and did not result in a sentence longer than one year and one month of imprisonment.¹ Thus Doe was a career offender only if both of his prior assaults were "crime[s] of violence." Id. § 4B1.1(a)(3). His sentence in 2003 occurred under our case law categorically designating simple assault in Pennsylvania as a crime of violence, and hence Doe was a career offender. United States v. Dorsey, 174 F.3d 331, 333 (3d Cir.1999). He was sentenced to 262 months of imprisonment, the bottom of the Guidelines range, and did not appeal. Without the career-offender enhancement, Doe's Guidelines range would have been 110–137 months, with a mandatory minimum of 10 years.² U.S.S.G. ch. 5 pt. A (2002).

In 2004 the Government filed a motion to reduce Doe's sentence because he provided "substantial assistance" to the Government in a different criminal investigation. Fed.R.Crim.P. 35(b). The Government requested that the District Court hold the motion in abeyance while the investigation was ongoing, which the Court did. While the Rule 35 motion was still pending, Doe filed a § 2255 motion arguing in part that his simple assault convictions were not crimes of violence and that he was therefore wrongly sentenced as a career offender.

On April 16, 2008, the Supreme Court decided Begay, which held that a DUI conviction is not a "violent felony" within the meaning of the Armed Career Criminal Act (ACCA) because it does not involve "purposeful, violent, and aggressive conduct." 553 U.S. at 145, 128 S.Ct. 1581. The words and structure of the career-offender Sentencing Guideline are similar to the ACCA's. This holding thus significantly strengthened Doe's argument (which otherwise would have certainly failed because of Dorsey ), as the subsection of Pennsylvania's assault statute to which Doe pled guilty proscribes intentional (i.e., purposeful), knowing and reckless conduct. 18 Pa. Cons.Stat. § 2701(a)(1) and (a)(2). Yet, panels of this Court continued to apply Dorsey in nonprecedential opinions. E.g., United States v. Wolfe, 301 Fed.Appx. 134 (3d Cir.2008).

The District Court appointed the Federal Defenders to represent Doe on collateral review. On April 16, 2009, one year to the day from Begay (and thus the last day of AEDPA's limitations period within which Doe could make an argument attacking his sentence based on that decision, see 28 U.S.C. 2255(f) ), the District Court held an evidentiary hearing on both the Rule 35(b) and the § 2255 motions.

It indicated that it would grant Rule 35 relief but would not vacate the sentence under § 2255, and Doe's counsel withdrew the § 2255 motion. Throughout the hearing, a crucial factor for everyone was how to keep confidential that Doe was cooperating with the authorities; if his cooperation got out, he would have been in danger from other inmates. The Court and counsel engaged in a lengthy colloquy about whether they were proceeding on Doe's § 2255 motion or the Government's Rule 35 motion. Eventually, Doe's lawyer proposed the following.

MR. LIVINGSTON [Doe's counsel]: Your Honor, what I can do at sidebar is withdraw [the § 2255 motion], but when I was asking, for the public portion of this record, the reason I made that request and the reason why I said the things I said of public record were mostly for Mr. Doe's³ safety. When he explained—what he explained to me is that he is fully expecting that the Court is going to enter a sentence today that is greater than time served and that he's going to go back to the federal place from which he came, and that inmates there, if they find out that he is now serving a lesser term of imprisonment will suspect that he came in here on a 35(b) motion. So, without of record formally withdrawing the motion, what I can say at sidebar is that Mr. Doe is not expecting relief under the 2255 vehicle.

THE COURT: But I think we have a problem then, I do, because I'm not going to grant the relief under 2255. I'm glad to grant it under 35(b) and I'm glad to keep that under seal, but I am not finding today that he's not a career offender and that his criminal history calculation in the presentence report overrepresented the actual severity of his past criminal history. So, I mean I think to do that, I almost have to say then that he's really not a career offender because I have to give those past offenses less weight and take him out of that status, and I don't find that to be true.

So I don't know how we accomplish that because that's the basis of my relief today. The basis of my relief is ... the government having filed a 35(b) motion and telling me what they have told me today.

There followed further discussion on how to seal proceedings, and the Court addressed the defendant:

THE COURT: Mr. Doe, do you have any questions at all about what we've just been talking about here?

THE DEFENDANT: It's like kind of complicated to me.

THE COURT: If you want to have a little bit of time to speak with Mr. Livingston, you certainly can.

THE DEFENDANT: I would appreciate that.

(Whereupon, there was a brief pause in the proceedings.)

MR. LIVINGSTON: I've had an opportunity to discuss the procedures that we've just been going through here with Mr. Doe, and on his behalf, what I'm going to do formally is move to withdraw his pro se 2255.

The Court then granted the Rule 35(b) motion and reduced Doe's sentence by about seven years.

On May 5, 2009, Doe appealed from the grant of the Rule 35(b) motion, arguing that he was entitled to further reduction because of his wrongful classification as a career offender under the Guidelines. While that appeal was pending, we decided United States v. Johnson, 587 F.3d 203 (3th Cir.2009), which overruled Dorsey in light of Begay and held that courts must inquire into the part of the statute to which the defendant actually pled guilty in order to determine whether the career-offender enhancement applies. If the defendant pled guilty to "an...