USA v. Martin, Jr.

• Decision Date: 06 June 2000
• Docket Number: No. 99-55478,99-55478
• Citation: 226 F.3d 1042
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TOMMY MARTIN, JR., Defendant-Appellant. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1042

226 F.3d 1042 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TOMMY MARTIN, JR., Defendant-Appellant.

No. 99-55478

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted June 6, 2000--Pasadena, California

Filed September 22, 2000

[Copyrighted Material Omitted]

Kenneth P. White and Miriam A. Krinsky, Assistant United States Attorneys, Los Angeles, California, for the plaintiffappellee.

Michael Tanaka, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant.

Appeal from the United States District Court for the Central District of California; Robert M. Takasugi, District Judge, Presiding, D.C. Nos. CV 96-02132-RMT-1,CR-91-00095-RMT.

Before: Stephen Reinhardt and Marsha S. Berzon, Circuit Judges, and Charles R. Breyer, District Judge¹

OPINION

BERZON, Circuit Judge:

The pivotal question in this case is whether there is any time limit within which a party to a 28 U.S.C. S 2255 proceeding may file a motion to reconsider a district court's order resolving the merits of a S 2255 petition when that order contemplates resentencing, but the resentencing has not yet occurred. One might assume that this technical question of S 2255 procedure would have come up before and could be determined under settled law. Surprisingly, though, as far as we can determine the precise issue has never been addressed either by this court or by any other federal appellate court.

I

This appeal was brought by Tommy Martin, Jr. from the district court's denial of his motion under S 2255 to vacate his conviction and sentence for carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. S 924(c). The district court initially granted Martin's petition and scheduled resentencing, but reversed itself when the Government moved for reconsideration on the basis of an intervening change in the law. The Government's motion was filed more than ten days after the district court's order granting Martin's petition, but before the scheduled resentencing. Martin's contention on appeal is that the district court lacked jurisdiction to consider the Government's motion to reconsider because, Martin asserts, the motion was untimely filed.

The background of Martin's S 2255 proceedings is as follows: Martin was convicted in federal court in 1991 on three counts: the S 924(c) firearm offense; conspiracy to possess cocaine base with intent to distribute, in violation of 21 U.S.C. S 841(a)(1); and possession of cocaine base with intent to distribute, in violation of 21 U.S.C. S 846. The district court sentenced him to imprisonment for 235 months.

Martin filed this S 2255 motion on March 26, 1996, arguing that the S 924(c) conviction was invalid in light of the Supreme Court's then-recent decision in Bailey v. United States, 516 U.S. 137 (1995), and its progeny. Martin argued that the Government had not proved he had "used " the firearm within the meaning of S 924(c) as construed in Bailey. The district court agreed with this contention and therefore, on April 7, 1998, granted Martin's motion, vacated hisS 924(c) conviction, and scheduled a resentencing hearing for July.

On June 29, 1998--eighty-three days after the district court's order--the Government filed a motion to reconsider the order contending that the district court'sS 2255 ruling could not be squared with Muscarello v. United States, 524 U.S. 125 (1998), decided after the district court issued its order. In Muscarello, the Supreme Court revisited S 924(c) and held that a conviction can be sustained on the "carry" prong of S 924(c) if the defendant knowingly possessed and conveyed the firearm in a vehicle, as Martin had done. See id. at 126-27.

After receiving the Government's motion for reconsideration, the district court issued an order continuing the resentencing hearing pending the resolution of the motion. Although Martin filed an opposition to the Government's motion, contending that it was untimely filed, the district court granted the Government's reconsideration motion and reversed its decision on Martin's S 2255 motion. The district court concluded that the Government's motion was timely because it was filed prior to the resentencing and that its initial order was inconsistent with Muscarello.

Martin now appeals, contesting only the district court's jurisdiction over the motion to reconsider.² Reviewing de novo this jurisdictional question, see, e.g. , United States v. Morales-Alejo, 193 F.3d 1102, 1104 (9th Cir. 1999), we conclude that the Government's motion was indeed timely, and that the district court therefore had jurisdiction to decide it.

II

Before we turn to the issue of the district court's jurisdiction, we first consider, sua sponte, our own jurisdiction over this appeal. See Hajek v. Burlington Northern R.R. Co., 186 F.3d 1105, 1107 (9th Cir. 1999).

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1217, "an appeal may not be taken to the court of appeals from. . . the final order in a proceeding under section 2255" unless a certificate of appealability ("COA"), based on "a substantial showing of the denial of a constitutional right, " is first issued. 28 U.S.C. S 2253(c)(1)(B). Although Martin filed his petition with the district court before the effective date of AEDPA (April 24, 1996), he brought this appeal after that date. At the time of Martin's appeal, under this court's precedents a petitioner did not need to have a certificate of appealability if the petition was filed before the effective date of AEDPA. See Fuller v. Roe, 182 F.3d 699, 702 (9th Cir. 1999). So, not surprisingly, Martin did not apply for, and no court ever issued, a COA.

After the appeal in this case was docketed and the briefs were filed, the Supreme Court handed down Slack v. McDaniel, 120 S. Ct. 1595 (2000), making clear that no matter when the petition was first filed, an appeal brought after AEDPA's effective date requires a COA. See id. at 1603. Under Slack, then, a COA must issue before this case can proceed in this Court.

As noted, section 2253(c) further provides that a COA may only issue "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.S 2253(c). The issue Martin raises on appeal--the timeliness of a motion to reconsider an order granting a S 2255 motion filed prior to resentencing--does not concern the denial of a constitutional right; the appeal is limited to a discrete question of district court procedure and jurisdiction. Furthermore, because of the unusual circumstances of this case, Martin's underlying petition, if considered as of the present time rather than as of the time he filed it, no longer raises a substantial constitutional question. The district court jurisdictional question raised in this appeal arose precisely because the Supreme Court decided the constitutional question against Martin between the time the district court first granted his petition and the resentencing. The question, then, is whether a COA is still available in view of these two circumstances.

Slack speaks to both aspects of our COA problem (although the precise circumstances in Slack were somewhat different).³ In its discussion of appellate jurisdiction over procedural questions arising from the district court's treatment of habeas petitions, the Court observed that:

Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy S 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. The issue becomes somewhat more complicated where, as here, the district court dismisses the petition based on procedural grounds. We hold as follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.

Slack, 120 S. Ct. at 1604 (emphasis added).

Slack, then, adopted a two-part test concerning appellate jurisdiction over trial court procedural errors in habeas⁴ cases: First, the court must decide whether the petition raises a debatable constitutional question. See Slack, 120 S. Ct. at 1604; Lambright v. Stewart, 220 F.3d 1022, 1026 (9th Cir. 2000). Certainly, Martin's underlying petition did so. See Hohn v. United States, 524 U.S. 236, 250 (1998); United States v. Addonizio, 442 U.S. 178, 186 (1979). Although the constitutional issue Martin raised in his petition was ultimately resolved by the Supreme Court against his position, the question in this appeal is precisely whether, for procedural reasons, the law as it stood when the petition was filed should govern. It would prejudge the answer to this question to deny appealability on the basis of the current state of constitutional law. Under these circumstances, the focus should remain, as in Slack, on whether the petition raised a substantial constitutional issue.

Second, under Slack we must decide whether the procedural issue is debatable. See Slack, 120 S. Ct. at 1604; Lambright, 220 F.3d at 1026. As our discussion of the merits of Martin's appeal will make plain, although we ultimately decide against Martin's position, the procedural issue he raises is highly debatable.

In light of Slack, Martin was eligible for a COA.

Martin, however, did not apply for a COA, and no COA has in fact issued. Slack, however, addressed this problem as well. Noting that Rule 22(b) of the Federal Rules of Appellate Procedure provides that the court of appeals may treat an appellant's notice...