Williams v. U.S., 97-3187
| Decision Date | 03 June 1998 |
| Docket Number | No. 97-3187,97-3187 |
| Citation | 150 F.3d 639 |
| Parties | Jermaine WILLIAMS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
W. Charles Grace (argued), Office of the U.S. Attorney, Criminal Division, Fairview Heights, IL, for plaintiff-appellee.
Frederick J. Hess (argued), Lewis, Rice & Fingersh, Belleville, IL, for defendant-appellant.
Before FLAUM, EASTERBROOK, and RIPPLE, Circuit Judges.
Following his guilty plea to all six counts of an indictment charging him with drug offenses, Jermaine Williams was sentenced in February 1995 to concurrent terms of 97 months' imprisonment. After the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) he sought relief under 28 U.S.C. § 2255. One count had charged him with distributing cocaine base within 1,000 feet of a school, in violation of 21 U.S.C. § 860, and another with the lesser included offense of distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1), in the same transaction. Williams asked the judge to set aside the greater conviction, contending that multiple convictions violate the double jeopardy clause of the fifth amendment. The judge vacated the lesser-included conviction but left the other five alone; the sentence was unaffected. Whether vacating even the § 841 conviction was appropriate, given Williams' guilty plea, is something we need not consider, because the United States does not protest. But see United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (). It is Williams who has appealed, contending that the judge should have vacated all six convictions and resentenced him on the five remaining offenses. Williams contends that when imposing a new sentence the judge would have been required to use the 1997 version of the Sentencing Guidelines, which because of recent changes would have led to a sentence lower than 97 months. Or so Williams submits. We do not consider the argument on the merits, because Williams lacks a certificate of appealability.
After its amendment by the AEDPA, 28 U.S.C. § 2253(c) reads:
(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from--
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
Williams wants to contest "the final order in a proceeding under section 2255" and therefore needs a certificate of appealability. Because Williams used the criminal caption and docket number in his notice of appeal and other papers, and never sought a certificate of appealability, our clerk's office did not notice that § 2253(c) applies. When the United States raised the problem in its brief as appellee, Williams replied that under Circuit Rule 22.1(b) his notice of appeal implies a request for the necessary certificate. See also Porter v. Gramley, 112 F.3d 1308, 1312 (7th Cir.1997). To this the United States rejoins that his failure to seek the certificate initially from the district court is fatal. We don't see why.
Section 2253(c)(1) says that "a circuit justice or judge" may issue the necessary certificate. It does not require an initial application to the district court. Indeed, the difference between the language of § 2253 before and after its amendment by the AEDPA in 1996 could support quite a different conclusion. The final paragraph of the former § 2253 read: "An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding ... unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause." This has been replaced by: "Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals...." The deletion of any reference to "the justice or judge who rendered the order" could imply that the district judge is no longer entitled to issue a certificate. Yet Fed.R.App.P. 22(b), enacted as part of the AEDPA, includes this language: "If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of appealability or state the reasons why such a certificate should not issue." This implies that "circuit justice or judge" in § 2253(c)(1) should be read as "(circuit justice) or judge" rather than "circuit (justice or judge)". The Judicial Conference has recommended that the Supreme Court amend Rule 22 to state explicitly that district judges may issue certificates of appealability in cases under both § 2254 and § 2255, and several courts of appeals have held that they possess this authority as things stand. E.g., Tiedeman v. Benson, 122 F.3d 518 (8th Cir.1997); Hunter v. United States, 101 F.3d 1565 (11th Cir.1996) (en banc). Saying that district judges may issue certificates of appealability is the most one can do with this language, however; nothing in the statute makes initial resort to the district court essential. True, Circuit Rule 22.1(b) instructs litigants to go to district courts first, and initial application to the district judge is good practice. But a court of appeals is entitled to make exceptions to its norms (see Circuit Rule 2), a power we lack when interpreting an Act of Congress. Bypassing the district judge may be essential when time is short (as in death penalty litigation) and may be prudent in other cases--such as this one, in which the issue first arose in the appellate briefs. Far better to put the question to a court that has read the briefs and heard oral argument than to toss it back to a district judge who may have forgotten what the fuss is about. So we have the power to issue a certificate--if Williams meets the statutory criterion. But he does not.
"A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of...
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