United States v. Orozco ( 1997 )

REVISED
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-50402
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS ALFREDO OROZCO, JR.
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
December 31, 1996
Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
We must determine, sua sponte, whether those provisions of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) which
govern appeal of a district court’s final order in a 28 U.S.C. §
2255 proceeding apply to cases pending when AEDPA was enacted, but
for which the final order and appeal occurred post-enactment; and
if they do, whether, under AEDPA, we construe a notice of appeal as
the AEDPA-mandated request for a certificate of appealability, when
the request has not been filed. We answer both questions in the
affirmative; but, concluding that the appellant has not satisfied
the AEDPA standard for issuance of the certificate (“substantial
showing of the denial of a constitutional right”), we DISMISS.
I.
Jesus Alfredo Orozco, Jr. pled guilty in 1995 to, inter alia,
using and carrying a firearm during the commission of a violent
crime, in violation of 18 U.S.C. § 924(c)(1). He did not appeal.
In mid-April 1996, relying on Bailey v. United States, ___
U.S. ___, 116 S. Ct. 501 (1995)(interpreted meaning of “use” in
context of § 924(c)(1)), Orozco moved, pro se, pursuant to 28
U.S.C. § 2255 to vacate, set aside, or correct his sentence.
Approximately a week later, on April 24, the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (1996), took effect. Among other things, AEDPA amended 28
U.S.C. § 2253 and FED. R. APP. P. 22, concerning appeals from final
orders in habeas corpus proceedings challenging state detention and
§ 2255 proceedings. One amendment to § 2253 is that, “[u]nless a
circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from” such final
orders. Pub. L. No. 104-132, § 102, 110 Stat. 1214, 1218, codified
at 28 U.S.C. § 2253(c)(1).
In late May, the district court denied Orozco’s § 2255 motion.
Thereafter, although Orozco, pro se, filed a timely notice of
appeal, he did not request a certificate of appealability.
II.
AEDPA does not state whether the amendments to § 2253 and Rule
22 extend to § 2255 proceedings pending when AEDPA took effect.
Therefore, our starting point is to determine whether it applies to
a § 2255 proceeding pending at the time of its enactment, but for
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which both the final order and notice of appeal are post-enactment.
Landgraf v. USI Film Products, 511 U.S. 244, ___, 114 S. Ct. 1483,
1505 (1994); Hunter v. United States, ___ F.3d ___, 1996 WL 706706,
at *4 (11th Cir. Dec. 10, 1996) (en banc); Drinkard v. Johnson, 97
F.3d 751, 766 (5th Cir. 1996). If it does apply, the next issue is
whether, absent a certificate of appealability, the notice of
appeal constitutes one. And, if it does, we then must decide
whether a certificate may issue for this appeal. Because these
jurisdictional issues were not raised by either party, we address
them sua sponte. E.g., Lowe v. Ingalls Shipbuilding, 723 F.2d
1173, 1176-77 (5th Cir. 1984).
A.
AEDPA took effect before Orozco filed his notice of appeal.
On this fact alone, it can be argued with quite considerable force
that AEDPA’s changes for appeals of § 2255 proceedings would be
applied prospectively, not retrospectively, to Orozco. On the
other hand, it can be urged that their application would be
retrospective, because they would have an effect on events or acts
that occurred pre-AEDPA, such as the underlying offense, the plea
agreement, not taking a direct appeal, filing the § 2255 motion,
and not seeking to amend that motion in the four- week interval
between AEDPA’s effective date and the denial of the motion.
For this effect on pre-AEDPA events argument, it must be
remembered that “[a] statute does not operate ‘retrospectively’
merely because it is applied in a case arising from conduct
antedating the statute’s enactment”. Landgraf, 511 U.S. at ___,
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114 S. Ct. at 1499. As noted, Congress did not state whether the
provisions in issue pertained to the appeal of a § 2255 proceeding
pending pre-AEDPA; therefore, we
must determine whether the new statute would
have retroactive effect, i.e., whether it
would impair rights a party possessed when he
acted, increase a party’s liability for past
conduct, or impose new duties with respect to
transactions already completed. If the
statute would operate retroactively, our
traditional presumption teaches that it does
not govern absent clear congressional intent
favoring such a result.
Landgraf, 511 U.S. at , 114 S. Ct. at 1505.
AEDPA took effect before the denial of Orozco’s § 2255 motion.
The change brought about by AEDPA for appealing the final order in
a § 2255 proceeding has, arguably, narrowed the bases for appeal;
in fact, the change will limit such appeals. This is because, as
discussed below, the now requisite certificate of appealability did
not have a counterpart for pre-AEDPA § 2255 movants.
Prior to § 2253 being amended by AEDPA, a habeas applicant in
federal district court challenging state detention could not appeal
a final order to a court of appeals “unless the justice or judge
who rendered the order or a circuit justice or judge issue[d] a
certificate of probable cause.” 28 U.S.C. § 2253 (1995); FED. R.
APP. P. 22(b) (1995); e.g., Newby v. Johnson, 81 F.3d 567, 569 (5th
Cir. 1996). On the other hand, a pre-AEDPA § 2255 movant was not
required to obtain such a certificate in order to appeal the final
order in a § 2255 proceeding to a court of appeals. See 28 U.S.C.
§§ 2253, 2255 (1995).
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Now, in order to appeal a final order in either a federal
habeas proceeding challenging state detention or a § 2255
proceeding, the same standard applies to both; the applicant must
obtain a certificate of appealability by making “a substantial
showing of the denial of a constitutional right”. 28 U.S.C. §
2253(c). For the former (state detention), our court held recently
in Drinkard, 97 F.3d at 756, that the standard for issuance of a
certificate of appealability pursuant to AEDPA-enacted 28 U.S.C. §
2253(c)(1)(A) is the same as was required formerly for a
certificate of probable cause (denial of a federal constitutional
right).
Consistent with this line of reasoning, it might be claimed
that the basis for appealing a final order in a § 2255 proceeding
has not really changed either because, the argument would continue,
the basis for a certificate of appealability for a § 2255
proceeding is similar, if not equal, to the limited bases for §
2255 relief, which were well-established before, and were not
changed by, AEDPA. The grounds for § 2255 relief are quite narrow
indeed, as our court has repeatedly emphasized. E.g., United
States v. Samuels, 59 F.3d 526, 528 (5th Cir. 1995) (collateral
attack primarily limited to issues of constitutional or
jurisdictional magnitude and, even then, movant must show both
cause for not raising issue on direct appeal and prejudice because
of such failure; other errors may not be raised unless movant shows
both error could not have been raised on direct appeal, and error,
if condoned, would result in complete miscarriage of justice);
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United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir.), cert.
denied, 506 U.S. 1007 (1992); United States v. Drobny, 955 F.2d
990, 994-95 (5th Cir. 1992); United States v. Shaid, 937 F.2d 228,
231-32 (5th Cir. 1991)(en banc), cert. denied, 502 U.S. 1076
(1992).
Despite these quite narrow bases for § 2255 relief, we are not
able to conclude, at this infant stage of the effect of AEDPA on §
2255 appeals, that the new certificate requirement does not narrow
even more the movant’s chances for relief. For example, the
boundaries for § 2255 purposes of what can constitute the requisite
AEDPA basis for obtaining the certificate (“substantial showing of
the denial of a constitutional right”, 28 U.S.C. § 2253(c)(2)) are,
of course, as yet undetermined. As another example, it is well-
established that the cause and prejudice procedural bar cannot be
raised on appeal against the movant unless the United States raised
it in district court, Drobny, 955 F.2d at 995; perhaps, some may
seek a different forfeiture rule for the Government in the light
of, or as applied to, the certificate. Therefore, as stated, we
will assume that AEDPA has effected an adverse change for a § 2255
movant. See Hunter, ___ F.3d at ___, 1996 WL 706706, at *5.
In short, a pre-AEDPA § 2255 movant had the right to appeal;
he still does, but only if he obtains a certificate of
appealability. And, as noted, that “certificate ... 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). Considering
this change in the light of the above quoted three-factors standard
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from Landgraf, the first two are obviously not applicable; the
change will neither “increase a [§ 2255 movant’s] liability for
past conduct” nor “impose new duties with respect to transactions
already completed”. Landgraf, 511 U.S. at ___; 114 S. Ct. at 1505.
See Hunter, ___ F.3d at ___, 1996 WL 706706, at *6; Drinkard, 97
F.3d at 766. Accordingly, we look to the third Landgraf factor:
whether the change will “impair rights a party possessed when he
acted”. Landgraf, ___ U.S. at ___, 114 S. Ct. at 1505 (emphasis
added); Hunter, ___ F.3d at ___, 1996 WL 706706, at *6.
In Hunter, the Eleventh Circuit, en banc, quite recently
addressed this very question in a most thorough and well-considered
opinion. Prior to doing so, it called for briefs on this and other
AEDPA issues from the parties and a number of amici. Hunter, ___
F.3d at ___, 1996 WL 706706, at *2. The Eleventh Circuit held,
inter alia, that the AEDPA amendments to § 2253 and Rule 22(b)
“apply to pending ... § 2255 cases ... where no notice of appeal
was filed before [AEDPA’s] effective date.” Id. at *8.
We agree with our sister Circuit that “the term ‘rights’ as
used in this context [(‘impair rights a party possessed when he
acted’)] should not be construed broadly so as to sweep within its
ambit mere expectation interests under procedural or remedy rules.”
Id. at *6. See Landgraf, 511 U.S. at ___, 114 S. Ct. at 1501-02.
Hunter concludes correctly that, consistent with Landgraf, newly
amended § 2253 is such a rule; accordingly, it does not “impair
rights a party possessed when he acted”. Hunter, ___ F.3d at ___,
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1996 WL 706706, at *6-8. Therefore, AEDPA applies to Orozco’s
appeal, requiring a certificate of appealability.
B.
As noted, Orozco did not request such a certificate. Rule
22(b) of the Federal Rules of Appellate Procedure, as amended by
AEDPA, states plainly: “If no express request for a certificate is
filed, the notice of appeal shall be deemed to constitute a request
addressed to the judges of the court of appeals.” Pub. L. No. 104-
132, § 103, 110 Stat. 1214, 1218.
But, preceding this plain statement (notice constitutes absent
certificate request) are several sentences concerning habeas
proceedings challenging state detentions; these preceding sentences
might cause some to question whether the amended Rule applies to §
2255 proceedings. Nevertheless, our reading convinces us that it
does.
In any event, the headings for Rule 22, as well as subpart
(b), have also been amended. Rule 22's former heading of “Habeas
Corpus Proceedings” now reads “Habeas corpus and section 2255
proceedings”; subpart (b), formerly headed “Necessity of
Certificate of Probable Cause for Appeal”, now reads “CERTIFICATE
OF APPEALABILITY”. If need be, these headings can be consulted in
ascertaining the amended Rule’s meaning (because amended Rule 22(b)
is not ambiguous, we do not think they need be considered). See,
e.g., United States v. Wallington, 889 F.2d 573, 577 (5th Cir.
1989); House v. Commissioner, 453 F.2d 982, 987-88 (5th Cir. 1972).
And, they are in line with our reading of amended Rule 22; a notice
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of appeal constitutes a request for the certificate if the request
is not filed. See Hunter, ___ F.3d at ___, 1996 WL 706706, at *2
(notice of appeal construed as certificate request); Santana v.
United States, 98 F.3d 752 (3d Cir. 1996)(same).
C.
Accordingly, we turn to whether Orozco’s notice of appeal has
made the requisite “substantial showing of the denial of a
constitutional right”. But, the notice is bare bones, stating only
that Orozco appeals from the denial of his § 2255 motion. As we
have done previously in such circumstances, however, when
construing a notice of appeal as a request for the former
certificate of probable cause, we look also to Orozco’s other
papers filed with us -- his brief and reply brief -- to evaluate
the issues he presents. E.g., Jones v. Whitley, 938 F.2d 536, 538-
39 (5th Cir.)(reviewing all materials filed with district court in
evaluating issuance of certificate of probable cause when, although
applicant filed request for certificate in district court, did not
do so here), cert. denied, 501 U.S. 1267 (1991). See also Lucas v.
Johnson, ___ F.3d ___, 1996 WL 696777 (5th Cir. Dec. 5, 1996)(on
deciding State’s motion to stay briefing pending issuance of
certificate of appealability, relying on appellant’s brief for
enumeration of issues on appeal, even though application for
certificate of probable cause had been filed).
Pursuant to Orozco’s briefs, the sole basis before us for a
certificate is whether Bailey v. United States, ___ U.S. ___, 116
S. Ct. 501 (1995), demonstrates “substantially” that his conviction
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was “the denial of a constitutional right”. 28 U.S.C. §
2253(c)(2). As noted, Bailey concerns the meaning of “use” for
purposes of 18 U.S.C. § 924(c)(1) (“using or carrying a firearm
during commission of a violent crime”).
Orozco, however, pled guilty to both “carrying” and “using” a
firearm in violation of § 924(c)(1). Accordingly, the “use”
question aside, the conviction stands under the “carry” prong.
See, e.g., United States v. Rivas, 85 F.3d 193 (5th Cir.), cert.
denied, ___ U.S. ___, 1996 WL 664793 (1996); see also, e.g., Hohn
v. United States, 99 F.3d 892 (8th Cir. 1996). Therefore, Orozco
has not made the requisite “substantial showing of the denial of a
constitutional right”.
III.
For the foregoing reasons, a certificate of appealability is
DENIED. Accordingly, the appeal from the denial of § 2255 relief
is
DISMISSED.
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