USA. v. Saro

• Decision Date: 12 June 2001
• Docket Number: No. 00-3005,00-3005
• Citation: USA. v. Saro, 252 F.3d 449 (D.C. Cir. 2001)
• Parties: (D.C. Cir. 2001) United States of America, Appellee v. Carlos Saro, a/k/a Cristobal, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 449

252 F.3d 449 (D.C. Cir. 2001)

United States of America, Appellee v. Carlos Saro, a/k/a Cristobal, Appellant

No. 00-3005

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 19, 2001

Decided June 12, 2001

Appeal from the United States District Court for the District of Columbia (No. 90cr00449-03)

A. J. Kramer, Federal Public Defender, appointed by the court, argued the cause and filed the briefs as amicus curiae on the side of appellant.

Carlos Saro, appearing pro se, was on the briefs for appellant.

Matthew E. Sloan, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Wilma A. Lewis, U.S. Attorney at the time the brief was filed, and John R. Fisher, Roy W. McLeese, III, Robert D. Okun and John P. Dominguez, Assistant U.S. Attorneys. Mary-Patrice Brown, Assistant U.S. Attorney, entered an appearance.

Before: Edwards, Chief Judge, Rogers and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge:

Carlos Saro seeks relief from the district court's denial of his motion for leave to file a motion to vacate his sentence. Although the procedural complexities of this case require some discussion, we conclude that the district court was plainly correct in ruling that Saro's motion was time-barred. We therefore cannot grant Saro's request for relief.

I

In May 1991, Saro was convicted in the United States District Court for the District of Columbia on five counts of distribution of and conspiracy to distribute cocaine base, and was sentenced to life imprisonment. In 1994, we denied his appeal and affirmed his convictions and sentence. United States v. Saro, 24 F.3d 283 (D.C. Cir. 1994). Saro did not seek certiorari from the Supreme Court.

Pursuant to 28 U.S.C. 2255, a federal prisoner may move the sentencing court to vacate, set aside or correct his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." Effective April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) amended 2255 to impose a "1-year period of limitation" on motions brought under that section. Pub. L. No. 104-132, 105, 110 Stat. 1214, 1220 (1996). In United States v. Cicero, we held that prisoners like Saro, whose convictions became final before AEDPA's effective date, had a one-year grace period from that date in which to file a 2255 motion--yielding a filing deadline of April 24, 1997. See 214 F.3d 199, 202 (D.C. Cir. 2000).

On August 27, 1997--four months after that deadline--Saro mailed a pro se pleading to the district court entitled "Motion for Leave to File a Title 28 U.S.C. 2255." He did not attach a substantive 2255 motion to this pleading, nor did he give any indication of the nature of his underlying claims. Instead, Saro sought an extension of time in which to file a 2255 motion, based on the defalcation of his attorney. Saro stated that in late 1996 or early 1997, he contacted attorney Patrick L. Brown about filing a motion on his behalf. According to Saro's pleadings and attached correspondence, Brown told him that the deadline for filing the motion was April 24, 1997, and that Brown would not start working on the motion until Saro paid him a retainer. Brown wrote Saro on March 24, 1997, saying that he had not yet received the agreed-upon fee and advising Saro to send it quickly in light of the impending deadline. Saro mailed Brown a payment on March 28, 1997. Saro never heard from Brown again, and by May 30, 1997, Saro confirmed through correspondence with the clerk of the district court that Brown had not filed the 2255 motion. On July 31, 1997, Saro filed a complaint with the Disciplinary Counsel of the Supreme Court of Ohio, the bar of which Brown was a member. See Mot. for Leave to File at 1-2, Ex. 2.¹

On April 30, 1998, the district court denied Saro's motion for leave to file on the ground that it was "time-barred because it was filed significantly more than a year after the enactment of the AEDPA." United States v. Saro, No. 90-cr-449, slip op. at 2 (D.D.C. Apr. 30, 1998) ("April 1998 Order"). In response to Saro's argument that the limitations period should be tolled because of his lawyer's malfeasance, the court concluded that there were "no 'extraordinary circumstances' ... which would justify equitable tolling." Id. The court explained that although Saro had learned of Brown's failure to file by May 30, 1997, he did not submit his motion for leave to file until three months later. Moreover, Saro offered "no explanation for this three-month delay." Id.

Saro responded to the court's order with a series of motions seeking reconsideration, all of which the court denied. Saro subsequently asked the district court to issue a Certificate of Appealability (COA), required by 28 U.S.C. 2253(c) to appeal "the final order in a proceeding under section 2255." The district court denied this request as well. Saro filed notices of appeal from one of the district court's denials of reconsideration and from its denial of a COA.² We consolidated the notices of appeal and appointed the Federal Public Defender as amicus curiae to present arguments on Saro's behalf.³

II

As amended by AEDPA in 1996, 28 U.S.C. 2253 states: "Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a proceeding under section 2255." 28 U.S.C. 2253(c)(1); see Pub. L. No. 104-132, 102, 110 Stat. 1214, 1217 (1996). When a COA is required, we treat a notice of appeal as an application for a COA. See United States v. Mitchell, 216 F.3d 1126, 1130 (D.C. Cir. 2000); see also Fed. R. App. P. 22(b); Slack v. McDaniel, 529 U.S. 473, 483 (2000). Although Saro applied for a COA in the district court, he now contends that no COA is required to hear his appeal because the district court's April 1998 decision was not "the final order in a proceeding under section 2255," but rather was merely the denial of leave to file a 2255 motion. The United States contends that a COA is required because that decision was in fact the final order in a 2255 proceeding.

If a COA is required, it is a prerequisite to our consideration of Saro's appeal. See 28 U.S.C. 2253(c); Slack, 529 U.S. at 485. Thus, we may not simply assume that a COA is not required and proceed to the merits of Saro's claim. Cf. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-94 (1998) (holding that federal courts must determine that they have jurisdiction before turning to the merits of a case). We may, however, assume that a COA is required, and then proceed to consider whether Saro can satisfy the requirements for issuance of a COA. Cf. Slack, 529 U.S. at 485 (holding that "[e]ach component of the 2253(c) showing is part of a threshold inquiry"); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85 (1999) (holding that jurisdictional questions may be resolved in any order). Whether such an approach is fair to Saro if in fact no COA is required for his appeal is, of course, another question--which we address in Part III below.

Under 2253, a COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). In Slack v. McDaniel, the Supreme Court held that when a "district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue ... if the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." 529 U.S. at 478. The Slack test applies to Saro's case, because the district court denied Saro's motion solely on the procedural ground that it was barred by the statutory deadline.

The government contends that Saro cannot meet the first requirement of the Slack test--a debatable claim of the denial of a constitutional right--because Saro has never described the nature of his underlying constitutional claim. In response, Saro contends that the requirement of a debatable constitutional claim cannot be applied literally in a case like his, where the underlying 2255 motion was never filed because the district court denied leave to file. We need not resolve this dispute regarding Slack's first requirement, however, because it is quite clear that Saro cannot meet Slack's second requirement: that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.⁴

The government asks us to hold that reasonable jurists would not dispute the correctness of the district court's ruling that Saro's motion was time-barred, both because equitable tolling never applies to proceedings under 2255, and because even if the doctrine does apply, malfeasance by a prisoner's attorney does not constitute the "extraordinary circumstances" necessary to bring the doctrine into play. See Cicero, 214 F.3d at 203 (holding that if equitable tolling applies to 2255, tolling is warranted only "if extrordinary circumstances beyond a prisoner's control" prevented him from filing by the statutory deadline).⁵ We need not reach either such conclusion to resolve this case. Even if 2255's period of limitations is subject to equitable tolling, and even if the malfeasance of Saro's lawyer qualifies for tolling, the amount of time tolled would not excuse Saro's three-month delay after he learned of his lawyer's failure to file.

The Supreme Court has explained that "[p]rinciples of equitable tolling usually dictate that when a time bar has been suspended and then begins to...