United States v. Johnston ( 2001 )

REVISED JULY 30, 2001
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-20810
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
EDWARD JOHN JOHNSTON, III, also known as Easy,
also known as EZ, also known as Charles Edward Johnson, III,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
July 13, 2001
Before HIGGINBOTHAM and DeMOSS, Circuit Judges, and FISH,* District
Judge.
DeMOSS, Circuit Judge:
Edward John Johnston, III, a federal prisoner, moves for a
certificate of appealability (“COA”), claiming that the government
violated his constitutional rights and 18 U.S.C. § 201(c) when it
*
District Judge of the Northern District of Texas, sitting by
designation.
utilized witnesses who were either paid informants or were provided
immunity from prosecution. After both the government and Johnston
consented to proceed before a magistrate judge, the magistrate
judge dismissed on the merits Johnston’s motion to vacate, set
aside or correct sentence filed pursuant to 28 U.S.C. § 2255 and
also denied his motion for a COA. Because we conclude that the
consensual delegation of § 2255 motions to magistrate judges
violates Article III of the Constitution, we vacate the judgment
and remand the case to the district court.
I. BACKGROUND
Johnston was convicted of conspiracy to possess with intent to
distribute cocaine, cocaine base, and marijuana. He was sentenced
to 135 months of imprisonment, five years of supervised release, a
$6,000 fine, and a $50 special assessment. On direct appeal, we
affirmed Johnston’s conviction and sentence. The Supreme Court
denied his petition for a writ of certiorari. See Johnson v.
United States, 118 S. Ct. 1174 (1998).
Johnston timely filed a motion under § 2255, alleging that: 1)
the district court erred in finding that Kimela Lomax’s testimony
was a sufficiently reliable basis for calculating Johnston’s
sentence; 2) the government violated 18 U.S.C. § 201(c) by paying
Lomax between $6,500 and $7,000 for her testimony and by agreeing
not to prosecute Roy Patterson in exchange for his testimony; and
2
3) the prosecutor engaged in misconduct during the trial. Johnston
and the government both consented to proceed before a magistrate
judge pursuant to 28 U.S.C. § 636(c). The magistrate judge issued
a memorandum and order denying Johnston’s § 2255 motion. Johnston
timely filed a notice of appeal, and he also filed a motion for
leave to proceed in forma pauperis (“IFP”) on appeal. The
magistrate judge construed the notice of appeal as a motion for a
COA and denied it, but granted Johnston’s IFP motion. Thereafter,
Johnston filed the instant COA motion.
II. DISCUSSION
Before considering the substance of Johnston’s motion for a
COA, we must first address whether the motion is properly before
us. Although neither party has challenged the magistrate judge’s
prerogative to finally adjudicate Johnston’s § 2255 motion, we have
a “special obligation to 'satisfy [ourselves] not only of [our] own
jurisdiction, but also that of the lower courts in a cause under
review,' even though the parties are prepared to concede it."
United Transp. Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000)
(quoting Steel Co. v. Citizens for a Better Env't, 118 S. Ct. 1003,
1013 (1998)).1 Johnston and the government consented to proceed
before a magistrate judge with respect to his § 2255 motion.
1
See also Trevino v. Johnson, 168 F.3d 173 (5th Cir.), cert.
denied, 120 S. Ct. 22 (1999).
3
Whether their consent to proceed before the magistrate judge was
sufficient to confer jurisdiction depends on a two-step analysis.
United States v. Dees, 125 F.3d 261, 264 (5th Cir. 1997). “First,
we must ask whether Congress, in passing legislation governing
magistrate judges, intended for them to perform the duty in
question.” Id. In applying that first step, we should avoid
interpreting any legislation governing magistrate judges in such a
fashion as to engender constitutional issues if a reasonable
alternative posing no such issues is evident. See Gomez v. United
States, 109 S. Ct. 2237, 2241 (1989); Commodity Futures Trading
Comm’n v. Schor, 106 S. Ct. 3245, 3251 (1986). But if such an
alternative is not possible, then we must next consider “whether
the delegation of the duty to a magistrate judge offends the
principles of Article III of the Constitution.” Dees, 125 F.3d at
264. We review each step in turn.
A. Section 2255 is a Civil Matter for Purposes of § 636(c)
Section 636 of Title 28 recites the jurisdiction and statutory
authority of a magistrate judge. Subsection (c)(1) provides that
upon the consent of the parties, a magistrate judge may conduct any
or all proceedings in a jury or nonjury civil matter and order the
entry of judgment in the case when specially designated to exercise
such jurisdiction by the district court or the courts she serves.
28 U.S.C. § 636(c)(1). Here, the parties consented to proceed
before the magistrate judge and the district court had specially
4
designated that a magistrate judge could oversee the present kind
of litigation. See General Order No. 80-5, at 2-3 (S.D. Tex.
1980). The question remains whether a § 2255 proceeding
constitutes a civil matter for the purposes of § 636(c).
Very few courts have directly addressed this precise issue.
In United States v. Bryson, 981 F.2d 720, 723 (4th Cir. 1992), the
Fourth Circuit indirectly found that a § 2255 proceeding is a civil
matter for purposes of § 636(c) when it concluded in dicta that a
magistrate judge could adjudicate a § 2255 proceeding under
§ 636(c). In reaching the latter conclusion and, consequently, the
determination that a § 2255 proceeding is a civil matter for
purposes of § 636(c), the Fourth Circuit referenced various
decisions from other circuits, including ours, which implicitly
held that magistrate judges could adjudicate habeas petitions under
§§ 2241 and 2254 via § 636(c). See id. at 724; see also Orsini v.
Wallace, 913 F.2d 474, 477 (8th Cir. 1990) (“[T]he plain language
of section 636(c) . . . indicates that magistrates, upon consent of
the parties and reference by the district court, have jurisdiction
to order entry of judgment in a habeas case.”); Bullock v. Lucas,
743 F.2d 244, 245 (5th Cir. 1984) (reviewing appeal from magistrate
judge’s disposition of habeas proceeding conducted under § 636(c)),
modified and remanded sub nom., Cabana v. Bullock, 106 S. Ct. 689
(1986); Moore v. Tate, 882 F.2d 1107, 1109 (6th Cir. 1989) (same);
Turner v. Henman, 829 F.2d 612, 613 (7th Cir. 1987) (same);
5
Sinclair v. Wainwright, 814 F.2d 1516, 1518-19 (11th Cir. 1987)
(same). Habeas petitions have customarily been viewed as civil in
nature. Hilton v. Braunskill, 107 S. Ct. 2113, 2118 (1987);
Schlanger v. Seamans, 91 S. Ct. 995, 998 n.4 (1971). In referring
to those other circuits’ decisions about magistrate judges’
oversight of habeas petitions, the Fourth Circuit essentially
adverted to the similarity between § 2255 and habeas petitions and
implied that such a similarity signified that a § 2255 motion is a
civil matter that can properly be delegated to a magistrate judge
under § 636(c).
In United States v. Hayman, 72 S. Ct. 263 (1952), the Supreme
Court discussed the history of the writ of habeas corpus in America
and the evolution of § 2255. Id. at 268-72. The Court explained
that the distinction between § 2255 and habeas corpus proceedings
arose in 1948 when the Judicial Conference persuaded Congress that
many of the problems surrounding the administration of federal
prisoners’ habeas proceedings, such as the availability of a
prisoner’s records, could be prevented if such proceedings were
brought in the sentencing court rather than in the court of the
district in which the prisoner was confined. Id. at 271-72;
Kaufman v. United States, 89 S. Ct. 1068, 1071 & n.5 (1969).
Section 2255 was to “minimize the difficulties encountered in
habeas corpus hearings by affording the same rights in another and
more convenient forum.” Hayman, 72 S. Ct. at 272.
6
Although we have not addressed the specific issue before us,
we have generally construed a § 2255 proceeding as being civil in
nature. See United States v. Young, 966 F.2d 164, 165 (5th Cir.
1992) (observing that a § 2255 proceeding is governed by the sixty-
day limit of Federal Rule of Appellate Procedure 4(a) because such
a proceeding is civil); United States v. Buitrago, 919 F.2d 348,
349 (5th Cir. 1991) (“Claims brought under § 2255 are civil actions
governed by the sixty-day appeal period of Fed. R. App. P.
4(a)(1).”); cf. United States v. Cooper, 876 F.2d 1192, 1194 (5th
Cir. 1989) (noting that to the extent a coram nobis motion is like
a § 2255 motion, the former is civil in nature), abrogated on other
grounds by Smith v. Barry, 112 S. Ct. 678 (1992). On the other
hand, we have at times suggested that § 2255 motions are
conceptually distinguishable from habeas proceedings, such as
§ 2254 petitions, for certain discrete purposes. See United States
v. Brierton, No. 98-10382 (5th Cir. Jan. 12, 1999) (unpublished)
(concluding that § 2255 motions are distinct from habeas petitions,
precluding application of the Suspension Clause); see also Turner
v. Johnson, 177 F.3d 390, 392 & n.1 (5th Cir.) (finding in dicta
Brierton to be persuasive), cert. denied, 120 S. Ct. 504 (1999).
Indeed, § 2255 as enacted recognized some distinction from habeas
corpus. See 28 U.S.C. § 2255 (authorizing an application for writ
of habeas corpus if a § 2255 motion is “inadequate or ineffective
to test the legality of [a prisoner’s] detention”); Brendan W.
7
Randall, Comment, United States v. Cooper: The Writ of Error Coram
Nobis and the Morgan Footnote Paradox, 74 Minn. L. Rev. 1063, 1072
(1990). The Brierton panel relied on the advisory committee note
to Rule 1 of the Rules Governing Section 2255 Proceedings for the
United States District Courts to support its determination that the
Suspension Clause did not apply to § 2255 proceedings because those
proceedings were not habeas petitions. The advisory committee note
surmised that “a motion under § 2255 is a further step in the
movant’s criminal case and not a separate civil action.” Rule 1 of
the Rules Governing § 2255 Proceedings advisory committee note.
Clearly, if we were to follow narrowly the advisory committee
note’s statement, then the issue would appear resolved. But other
courts and commentators have suggested against overly relying on
the advisory committee’s note regarding any distinction between a
§ 2255 motion and a habeas proceeding. See United States v. Means,
133 F.3d 444, 449 (6th Cir. 1998); United States v. Simmonds, 111
F.3d 737, 742-43 (10th Cir. 1997); United States v. Nahodil, 36
F.3d 323, 328-29 (3d Cir. 1994); see also Charles Alan Wright,
Federal Practice and Procedure § 590, at 422 (1982) (observing
that, prior to the adoption of the Rules Governing § 2255, § 2255
proceedings had widely been presumed to be independent civil
actions and noting the limited amount of legislative history in
support of the advisory committee note’s position). Instead of
discerning an inviolable distinction with definite parameters, many
8
of those courts have concluded that a § 2255 motion is a hybrid,
with characteristics indicative of both civil and criminal
proceedings. See Means, 133 F.3d at 448-49; Simmonds, 111 F.3d at
742-43. Thus, those courts have not placed undue importance on the
advisory committee note but have realized that “[t]he precise
nature of § 2255 proceedings . . . remains highly dependent on the
proceedings’ context.” Id. at 743.
We, likewise, have found consistency in defining § 2255
proceedings an elusive task. Compare Young, 966 F.2d 164, with
United States v. Cole, 101 F.3d 1076 (5th Cir. 1996) (holding that
the Prison Litigation Reform Act’s procedures concerning payment of
fees by prisoners seeking to proceed in forma pauperis in civil
suits not applicable to § 2255 proceedings). Accordingly, we do
not believe that the advisory committee note mandates a finding
that a § 2255 is not a civil matter for purposes of § 636(c).2
Rather, the determination of whether a § 2255 proceeding is civil
or criminal in nature is dependent on the context of the
proceedings, including the legislative and statutory framework in
which the § 2255 proceeding must be examined.
Here, the context of the issue centers on the jurisdictional
provisions pertaining to magistrate judges. Congress amended the
Federal Magistrates Act in 1979 to include § 636(c), the section on
2
With this determination, we do not question whether the Brierton
panel’s ruling was correct.
9
a magistrate judge’s jurisdiction over consensual civil matters.
It did so “to improve access to the federal courts.” H.R. Conf.
Rep. No. 96-444, at 1 (1979). In particular, Congress sought to
protect the less-advantaged from the “vicissitudes of adjudication
delay and expense” and to help the federal court system “cope and
prevent inattention to a mounting queue of civil cases pushed to
the back of the docket.” S. Rep. No. 96-74, at 3 (1979). That
intent and legislative history suggest that the terms “civil
matter” in § 636(c) should be broadly interpreted to allow for
increased availability of adjudications by magistrate judges.
Consequently, at least with respect to § 2255 proceedings, the
scope of § 636(c) reveals that such proceedings are civil in
nature. Additional support for this conclusion may be derived from
§ 636(b), which provides authority to magistrate judges to conduct
hearings and to submit to the district court proposed findings of
fact and recommendations for the disposition, by the district
court, of applications for post-trial relief made by individuals
convicted of criminal offenses. See 28 U.S.C. § 636(b)(1)(B).
Although under § 636(b) a magistrate judge does not have authority
to enter a final judgment, the grant of authority to review matters
pertaining to all post-trial relief, and not just habeas petitions,
seems to reflect a general legislative bias towards allowing
magistrate judge oversight of § 2255 proceedings. In light of that
statutory framework and legislative intent, we hold that for
10
purposes of § 636(c), a § 2255 proceeding is a civil matter over
which Congress intended magistrate judges to exercise jurisdiction
upon consent of the parties.
B. Article III Strictures Preclude Delegation of § 2255
Proceedings to Magistrate Judges
Even though § 2255 proceedings may be presumed civil in nature
for purposes of § 636(c), we must still determine whether
delegating those proceedings to magistrate judges comports with the
strictures of Article III. Article III, Section 1 of the
Constitution provides that “the judicial Power of the United
States, shall be vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and establish”
and that “[t]he Judges, both of the supreme and inferior Courts,
shall hold their Offices during good Behaviour, and shall, at
stated Times, receive for their Services, a Compensation, which
shall not be diminished during their Continuance in Office.” This
constitutional provision serves two purposes: 1) “to safeguard
litigants’ right to have claims decided before judges who are free
from potential domination by other branches of government” and 2)
“to protect the role of the independent judiciary within the
constitutional scheme of tripartite government.” Schor, 106 S. Ct.
at 3255 (citations and internal quotation marks omitted). The
former concerns a defendant’s personal right to have his case heard
by an Article III judge. Dees, 125 F.3d at 266. That right may
11
be waived.3 Id. The second purpose pertains to “certain
structural guarantees which ensure respect for separation-of-powers
principles.” Id. Article III, Section 1 seeks to ensure such
respect “by barring congressional attempts to transfer jurisdiction
[to non-Article III tribunals] for the purpose of emasculating’
constitutional courts, and thereby preventing the encroachment or
aggrandizement of one branch at the expense of the other.” Schor,
106 S. Ct. at 3256 (citations and internal quotation marks
omitted). When these Article III guarantees are at issue, consent
or waiver by the parties to proceed before a non-Article III
officer diminishes but does not eliminate the constitutional
concerns associated with the delegation of judicial authority to
non-Article III tribunals because the guarantees serve
institutional interests that the parties cannot be expected to
protect. See id. at 3257, 3259. Because Johnston consented to the
use of a magistrate judge in his case, thereby waiving any personal
3
Waiver, though, may not always be conclusive with respect to
this first concern “if the alternative to the waiver were the
imposition of serious burdens and costs on the litigant.”
Pacemaker Diagnostic Clinic, Inc. v. Instromedix, Inc., 725 F.2d
537, 543 (9th Cir. 1984) (en banc). “If it were shown that the
choice is between trial to a magistrate or the endurance of delay
or other measurable hardships not clearly justified by the needs of
judicial administration, we would be required to consider whether
the right to an Article III forum had been voluntarily
relinquished.” Id.; see also Geras v. Lafayette Display Fixtures,
Inc., 742 F.2d 1037, 1042 (7th Cir. 1984) (requiring availability
of trial before an Article III judge as a realistic and viable
alternative to sustain constitutional challenge against reference
of civil matters to magistrate judges).
12
right he may have had to have his case reviewed by an Article III
judge, the only matter before us is whether the delegation of the
§ 2255 motion pursuant to § 636(c) offended the structural
guarantees of Article III.
The Supreme Court has never directly addressed the
constitutionality of civil trial authority of magistrate judges,
but it has made passing reference to the authority of such judges
to preside over civil jury trials with the consent of the parties
under § 636(c) without commenting upon its constitutionality in
Gomez v. United States, 109 S. Ct. 2237 (1989), and later again in
Peretz v. United States, 111 S. Ct. 2661 (1991). See Magistrate
Judges Division of the Administrative Office of the United States
Courts, A Constitutional Analysis of Magistrate Judge Authority,
150 F.R.D. 247, 303 (1993). On the other hand, almost all of the
circuit courts, including ours, have specifically addressed that
issue and concluded that magistrate judges’ jurisdiction over civil
cases with the consent of the parties does not violate the
Constitution. See Puryear v. Ede’s Ltd., 731 F.2d 1153 (5th Cir.
1984); Bell & Beckwith v. United States, 766 F.2d 910 (6th Cir.
1985); Gairola v. Virginia Dep’t of Gen. Servs., 753 F.2d 1281 (4th
Cir. 1985); D.L. Auld Co. v. Chroma Graphics Corp., 753 F.2d 1029
(Fed. Cir. 1985); Fields v. Washington Metro. Area Transit Auth.,
743 F.2d 890 (D.C. Cir. 1984); Geras v. Lafayette Display Fixtures,
Inc., 742 F.2d 1037 (7th Cir. 1984); Lehman Bros. Kuhn Loeb, Inc.
13
v. Clark Oil & Refining Corp., 739 F.2d 1313 (8th Cir. 1984);
Collins v. Foreman, 729 F.2d 108 (2d Cir. 1984); Goldstein v.
Kelleher, 728 F.2d 32 (1st Cir. 1984); Campbell v. Wainwright, 726
F.2d 702 (11th Cir. 1984); Pacemaker Diagnostic Clinic, Inc. v.
Instromedix, Inc., 725 F.2d 537 (9th Cir. 1984) (en banc); Wharton-
Thomas v. United States, 721 F.2d 922 (3d Cir. 1983); cf. United
States v. Dobey, 751 F.2d 1140 (10th Cir. 1985) (quoting favorably
from Pacemaker and Collins). In Puryear, we summarily found
§ 636(c) to be constitutional, referring to four decisions by our
sister courts: Pacemaker, Goldstein, Collins, and Wharton-Thomas.
See Puryear, 731 F.2d at 1154. Of those four decisions, the
seminal one for purposes of Article III analysis is Pacemaker, an
opinion authored by then-Judge, now Justice Kennedy. Sitting en
banc, the Ninth Circuit noted two concerns raised by § 636(c): 1)
whether, by providing for reference of court cases to magistrate
judges, Congress invaded the power of a coordinate branch or
permitted an improper abdication of that branch’s central
authority; and 2) whether the requirement of entry of judgment by
a non-Article III jurist improperly directs the judiciary in the
performance of its duties. Pacemaker, 725 F.2d at 544. To
evaluate those concerns, the Ninth Circuit set forth the following
standard: did the statute prevent or substantially impair
performance by the judiciary of its essential role under the
Constitution? Id. “If the essential, constitutional role of the
14
judiciary is to be maintained, there must be both the appearance
and the reality of control by Article III judges over the
interpretation, declaration, and application of federal law.” Id.
That control must be more than simple appellate review. Id.
Concluding that the statute covering magistrate judges’
jurisdiction invests the Article III judiciary with extensive
administrative control over the management, composition, and
operation of the magistrate judge system, the Pacemaker court found
no constitutional objection. Id.
Assuming that § 2255 motions are civil matters for purposes of
§ 636(c), we should be able to rely on Puryear and Pacemaker,
complete the syllogism that has been established, and conclude that
the delegation of § 2255 motions to magistrate judges is
constitutional. That is, because § 2255 motions are civil matters
and because consensual delegation of civil matters to magistrate
judges has been found to be constitutional, delegation of § 2255
motions is also constitutional. But as we previously noted about
§ 2255 motions, what may seem so logical and straightforward is not
always the ineluctable result. At least for the purposes of
Article III analysis, a § 2255 motion does not easily comport with
the average civil case or even another quasi-civil proceeding such
as a § 2254 petition and, consequently, presents three major
problems besides those problems already well-addressed in the
opinions on consensual delegation of civil cases.
15
First, unlike the average civil case or a § 2254 proceeding,
a § 2255 motion directly questions the validity of a prior federal
court ruling. The average civil case involves a dispute over the
rights and obligations of the litigants to the case and does not
generally concern prior legal rulings by another judge. Section
2254 proceedings do attack prior judgments, but they pertain to
state court criminal cases. As such, in § 2254 proceedings,
concerns over comity and federalism are more pronounced than any
concerns over the structural guarantees of Article III. That is
especially true when one considers that few states, if any, have
the lifetime tenure and undiminishable compensation, which form the
bulwark of the judiciary’s quality and independence so integral to
Article III. Under § 2255, a federal prisoner may move to vacate,
set aside, or correct a sentence that was imposed by a federal
judge, and principles of res judicata do not apply in such a
proceeding, see United States v. Reyes, 945 F.2d 862, 864 (5th Cir.
1991). If the parties to a § 2255 motion consent to proceed before
a magistrate judge, that magistrate judge could attack the validity
of an Article III judge’s rulings. Such an act clearly raises
Article III concerns because judges without lifetime tenure and
undiminishable compensation would have controlling authority. See,
e.g., James G. Woodward & Michael E. Penick, Expanded Utilization
of Federal Magistrate Judges: Lessons from the Eastern District of
Missouri, 43 St. Louis U. L.J. 543, 555-56 (1999) (finding awkward
16
and ill-advised a magistrate judge’s disposition of a § 2255
proceeding because such an assignment to a magistrate judge would
empower a subordinate judicial officer to review and perhaps vacate
or modify a sentence that had been ordered by an Article III
judge).
On the other hand, we have previously held that once the
parties provide consent and the district court specifically
designates a magistrate judge to conduct the civil proceedings, the
magistrate judge is not bound by the prior opinions expressed by
the district court in the case. See Cooper v. Brookshire, 70 F.3d
377, 378 n. 6 (5th Cir. 1995); Charles Alan Wright et al., Federal
Practice and Procedure § 3072, at 416 (2d ed. 1997) (“Certain
rulings by a presiding judge are inherently subject to
reconsideration, such as limits on discovery. Should parties
consent to proceedings before a magistrate judge after the assigned
district judge has made such a ruling, the magistrate judge must
have authority to modify the order.”); see generally Hill v. City
of Pontotoc, 993 F.2d 422, 425 (5th Cir. 1993) (noting that judges
of coordinate jurisdiction will defer to another’s interlocutory
rulings out of deference, not obedience). But see Taylor v.
National Group of Companies, Inc., 765 F. Supp. 411, 413-14 (N.D.
Ohio 1990) (finding that a magistrate judge’s jurisdiction is not
merged with that of the district court to vest the magistrate with
authority to reconsider and set aside a prior decision of the
17
district court). We may, however, distinguish Cooper from cases
involving § 2255 motions as Cooper was a civil action and concerned
the overturning of the district court’s statute of limitations
ruling. 70 F.3d at 378. By vacating under § 2255 a district
court’s criminal sentence, a magistrate judge does not merely
overturn another judge’s civil ruling; instead, she directly places
herself in the murky confines of federal criminal law and
procedure, which in and of itself may violate Article III. See
infra. Thus, although a magistrate judge may have the authority to
reconsider a district court’s prior decision in a civil case, that
does not necessarily mean that a magistrate judge has the authority
to do the same in a § 2255 proceeding upon receiving the parties’
consent.
Even if the ability of a magistrate judge to overturn an
Article III jurist’s prior ruling does not raise Article III
issues, the notion that a § 2255 proceeding is a further step in
the movant’s criminal case, see Rule 1 of the Rules Governing §
2255 Proceedings advisory committee note, means that the consensual
delegation of such a proceeding may unwittingly embroil a
magistrate judge in the unconstitutional conduct of a felony trial,
raising the second major problem. One guiding principle of our
previous Article III analysis has been that we doubt that a non-
Article III judge can preside over a felony trial without violating
18
the strictures of Article III.4 Dees, 125 F.3d at 267. That is
because: 1) a felony trial is a complex affair requiring close
oversight of delicate constitutional questions; 2) a district court
cannot adequately review a magistrate judge’s actions in an entire
felony trial; and 3) by giving away critical criminal jurisdiction,
federal judges risk devitalizing their coordinate branch of
government, thereby upsetting our constitutional balance.5 Id.
Thus, whenever an act delegated to a magistrate judge encroaches
upon a district court’s exclusive felony trial domain, Article III
concerns move to the forefront. Id. No one seriously questions
that the issue of sentencing is an integral part of the felony
criminal process. See, e.g., Gardner v. Florida, 97 S. Ct. 1197,
1205 (1977) (describing sentencing as “a critical stage of the
4
We recognize that § 636(a) provides magistrate judges the
authority to enter final judgments in misdemeanor criminal matters
with the consent of the parties. Whether such a delegation is
constitutional is less in doubt as “petty offenses were not
historically considered ‘crimes’ at common law” and were “summarily
disposed of by judicial officers other than Article III judges.”
150 F.R.D. at 304; see also Peretz, 111 S. Ct. at 2666-67
(referring to Congressional intent to give magistrate judges
consensual misdemeanor trial authority in 1979 as partial
justification for permitting magistrate judges the authority to
conduct consensual felony voir dire).
5
Parties to a civil case have options, such as arbitration, which
suggest that other quasi-judicial forums like proceedings before
magistrate judges may be appropriate forums for consensual civil
actions. Federal criminal cases, however, reside in the federal
court system, i.e., the Article III district courts. The police
power of the United States is generally not abdicated to another
forum. Accordingly, matters relating to federal criminal matters
evince greater Article III concerns than do those linked to civil
cases.
19
criminal proceeding”). Admittedly, the Supreme Court has allowed
for the consensual delegation of voir dire, another integral
component of the felony trial. Peretz, 111 S. Ct. at 2671.
Likewise, we have concluded that the delegation of plea allocutions
is proper and does not violate Article III. Dees, 125 F.3d at 269.
But in the case of voir dire, a district court retains the ultimate
decision about whether to empanel the selected jury and,
consequently, less Article III concerns exist. Id. at 267. As for
plea allocutions, they are more ministerial in nature and do not
form an essential component of the actual trial. Id. at 268.
Sentencings are not ministerial in nature and require the legal
judgment and acumen of a learned jurist, who may, at times must, do
the unpopular and, therefore, may need the shield of independence
afforded Article III jurists. Accordingly, in our view, the act of
sentencing does not compare with voir dire or plea allocutions for
purposes of Article III. Therefore, if a magistrate judge were
unable to do felony sentencings, then it would be odd for such a
judge to have the power under § 2255 to resentence or to even
vacate a prior sentence resulting from a felony conviction.
Third and finally, the consensual delegation of § 2255
proceedings under § 636(c) presents reviewability problems severe
enough to create the impression that magistrate judges are not
adjuncts, but are independent of Article III control. The Supreme
Court and our sister courts have consistently asserted that the
20
ability of Article III district courts to control and review a
magistrate judge’s decision provides compelling support for the
constitutionality of increased magistrate judge participation in
the federal court system. See Peretz, 111 S. Ct. at 2669-70;
Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 102 S. Ct.
2858, 2874-78 (1982); United States v. Raddatz, 100 S. Ct. 2406,
2417 (Blackmun, J., concurring); Dees, 125 F.3d at 268; Geras, 742
F.2d at 1043; Collins, 729 F.2d at 114-15; Pacemaker, 725 F.2d at
546; Wharton-Thomas, 721 F.2d at 926-27. For example, the judges
of the district courts have the authority to appoint magistrate
judges and may remove them for cause. See 28 U.S.C. § 631(a) &
(i). The district court must specially designate the magistrate
judge before consensual delegation of civil matters may occur. Id.
§ 636(c)(1). And upon a showing of good cause, the district court
has the power to vacate the reference of a civil matter. Id. at
§ 636(c)(4); see also Charles Alan Wright et al., Federal Practice
and Procedure § 3072, at 416 (2d ed. 1997) (“The power of the
district judge to vacate a reference is an important feature of the
legitimacy of section 636(c) referrals under Article III . . . .”).
Thus, the argument has run that the activities of the magistrate
judge do not endanger the independence of the judiciary because the
magisterial scheme allows for a sufficient amount of control and
review by Article III jurists. Peretz, 111 S. Ct. at 2669-70. But
if a magistrate judge were allowed to enter a final order in a
21
consensual § 2255 proceeding, that order would not be reviewable by
the district court. Although that has not stopped us or our sister
circuits from finding the consensual delegation of civil matters to
be constitutional due to the other mechanisms of control available
to district courts, we discern an additional twist with respect to
the nonreviewability of consensual § 2255 motions, which warrant a
different conclusion. As previously noted, unlike the average
consensual civil matter, a § 2255 proceeding attacks the validity
of and may undermine a prior decision of an Article III judge.
Allowing magistrate judge authority over such proceedings turns the
concept of reviewability on its head. Rather than district court
review and control, consensual magistrate judge authority over
§ 2255 motions creates the ironic situation whereby non-Article III
magistrate judges review and reconsider the propriety of rulings by
Article III district judges, but do not themselves have to worry
about review.6
6
This is even more telling in light of the fact that the Federal
Courts Improvement Act of 1996, Pub. L. No. 104-317, repealed
§ 636(c)(4) & (5), which previously provided the right to appeal
directly to the district court. As a result, civil matters
litigated pursuant to § 636(c) can only be reviewed on appeal by
the court of appeals. At least before 1996, one could make the
specious argument that the district court would, or rather more
like could, have some review over a consensually delegated civil
matter and, therefore, demonstrate sufficient reviewability for
purposes of Article III. Of course, this is an unavailing argument
in itself because “[t]he required control must be more than simple
appellate review.” Pacemaker, 725 F.2d at 544 (citing Northern
Pipeline, 102 S. Ct. at 2879 n.39).
22
The fact that a magistrate judge may essentially overturn the
judgment of an Article III district court in a criminally related
case detracts from the reasons supporting constitutionality of
consensually delegated civil matters. Consensual delegation of
§ 2255 proceedings do not evince sufficient reviewability and
control for purposes of Article III. A magistrate judge may vacate
the ruling of a district court judge, but a district court
essentially cannot do anything to the magistrate judge. We realize
that the district court could stop a magistrate judge from having
its own criminal judgments vacated by: 1) not appointing magistrate
judges; 2) not originally referring § 2255 proceedings; or 3)
vacating the civil reference under § 636(c)(4), but those
possibilities are a poor measure of control. If the only way to
review and to control something so starkly at odds with Article
III, like having magistrate judges review district court rulings
but not vice versa, is to do any of the three listed options, then
there is no sense for having a magisterial scheme dealing with the
consensual delegation of § 2255 proceedings. The only options for
reviewability and control are untenable with a consensual
delegation of § 2255 proceedings to magistrate judges.
The primary structural guarantee of Article III is to ensure
respect for separation-of-powers principles “by barring
congressional attempts to transfer jurisdiction [to non-Article III
tribunals] for the purpose of emasculating’ constitutional courts,
and thereby preventing the encroachment or aggrandizement of one
23
branch at the expense of the other.” Schor, 106 S. Ct. at 3256
(citations and internal quotation marks omitted). We recognize
that the magisterial scheme is said not to be the “paradigmatic
separation of powers case, where the integrity of one branch is
threatened by another which attempts an arrogation of power to
itself.” Pacemaker, 725 F.2d at 544. That is because in
situations like the consensual delegation of general civil matters,
the authority of Article III courts is not challenged. Instead,
the only conceivable threat to the independence of the judiciary
concerns the danger to the independence of the magistrate judges
from within, rather than from without, the judiciary itself in the
form of Article III district judges. Cf. Raddatz, 100 S. Ct. at
2417 (Blackmun, J., concurring). But when magistrate judges, who
do not have lifetime tenure or undiminishable compensation, may
reconsider and vacate Article III judges’ rulings pertaining to
criminal matters, particularly felony convictions, we tread in
different waters. By allowing consensual delegation of § 2255
proceedings to magistrate judges, we exact a deadly blow to the
vitality and strength of a independent judiciary. Congress,
through its legislative powers to enact laws regulating and
controlling the term, the salary, the qualifications, the duties,
and the establishment of magistrate judges,7 has then the
7
Specific statutory provisions do provide for certain guidelines
with respect to the term, the salary, the qualifications, the
duties, and the establishment of magistrate judges. See 28 U.S.C.
24
capability to direct the affairs of Article III courts. That
cannot be allowed and requires our finding that the consensual
delegation of § 2255 proceedings to magistrate judges under §
636(c) is unconstitutional.
III. CONCLUSION
For the foregoing reasons, we conclude that the consensual
delegation of § 2255 motions to magistrate judges violates Article
III of the Constitution. As a result, we do not address the merits
of Johnston’s appeal, but vacate the judgment entered by the
magistrate judge and remand the case to the district court for
proceedings consistent with this opinion.
§§ 631-636. For example, the salary of a magistrate judge may not
be reduced during the term in which she is serving below the salary
fixed for her at the beginning of that term. Id. § 634. But those
provisions may always be repealed.
25
PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:
I share the majority's concern over the constitutionality of
allowing magistrate judges to dispose of section 2255 motions. I
would not, however, reach this constitutional question. See, e.g.,
Zadvydas v. Davis, 121 S. Ct. 2491, 2001 WL 720662, at *7 (U.S.
June 28, 2001); United States v. Ford, 824 F.2d 1430, 1435 (5th
Cir. 1987) (“[W]e insist upon clear congressional expression when
the reach of [a] claimed reading provokes issues regarding
constitutionally mandated spheres of governmental power.”).
It is axiomatic that only an Article III judge can be vested
with the power to conduct a dispositive review of the judgment of
another Article III court.8 Review by the Court of Appeals of a
magistrate judge’s final ruling upon a section 2255 petition offers
little protection for the structural component of Article III,
allowing the parties to agree that an Article III judgement will be
subject to review by a non-Article III judge. The force of these
concerns should not loosen our restraint. Rather, because we can do
so in a principled manner, we ought to read the challenged
congressional act to avoid this constitutional ruling.
I would read 28 U.S.C. § 636(c) to preclude granting
magistrate judges the authority to render final judgment in an
8
See Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp.,
333 U.S. 103 (1948) ("Judgments within the powers vested in courts
by the Judiciary Article of the Constitution may not lawfully be
revised, overturned or refused faith and credit by another
Department of Government.").
attack under 28 U.S.C. § 2255 upon a final judgment of conviction,
regardless of the parties' consent.
The impetus to push the trial of civil cases in federal courts
upon magistrate judges is puzzling. According to data compiled by
the Administrative Office, each active Article III judge presided
over an average of only nine civil trials last year;9 the median
length of a civil trial was one or two days.10 The criminal docket
offers little explanation, for Article III judges presided over an
average of only six criminal trials, jury and bench.11 Despite
mounting “case” filings, the number of civil and criminal trials
has declined markedly over the past thirty years in all categories
of cases.12 The shrinking number of trials is the subject of a
9
See Administrative Office of the United States Courts, "U.S.
District Court—Judicial Caseload Profile," in Federal Court
Management Statistics 2000 (2001), available at
http://www.uscourts.gov/cgi-bin/cmsd2000.pl; Leonidas Ralph Mecham,
2000 Annual Report of the Director: Judicial Business of the United
States Courts 2000 app. tbls. C-4, D-4 (2001).
10
See Mecham, supra note 2, at app. tbl. C-8. This estimate
derives from Administrative Office data based on a generous
definition of "trial," which includes "miscellaneous cases,
hearings on temporary restraining orders and preliminary
injunctions, hearings on contested motions and other contested
proceedings in which evidence is introduced." Id.
11
See Administrative Office, supra note 2; Mecham, supra note 2,
at app. tbl. D-4.
12
This assessment is based on data contained in current and past
editions of the Annual Report of the Director: Judicial Business of
the United States Courts.
27
larger debate over the changing role of the United States district
courts.13
This is not to suggest that the Article III trial judges are
not working. Rather, this phenomenon calls into question the
rationale for the type of work we urge upon magistrate judges.
More to the point, the empirical data highlights the wisdom of the
structural component of Article III, limiting as it does, or
should, the authority of consent by the parties. It is one thing
for two parties to agree to resolve their civil dispute outside
the courthouse. It is another to accept their agreement to proceed
privately while remaining inside the courthouse. And we have never
accepted a purely private resolution of criminal matters. A
proceeding to decide if a criminal conviction will stand is a
criminal proceeding in every relevant practical and functional
sense, however we choose to label it.
I join the holding that petitions for relief from federal
criminal convictions under 28 U.S.C. § 2255 may not be referred to
a magistrate judge for final disposition.
13
See, e.g., Judith Resnik, Trial As Error, Jurisdiction As
Injury: Transforming the Meaning of Article III, 113 Harv. L. Rev.
924 (2000).
28