United States v. Wall ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-8-2006
USA v. Wall
Precedential or Non-Precedential: Precedential
Docket No. 04-2280
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 04-2280, 05-2019
___________
UNITED STATES OF AMERICA
v.
PARRIS WALL, JR. a/k/a PETEY
Parris Wall, Appellant
___________
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 99-cr-00033-4)
District Judge: The Honorable Joseph J. Farnan, Jr.
___________
ARGUED APRIL 26, 2006
BEFORE: SCIRICA, Chief Judge, and
NYGAARD, Circuit Judge., and YOHN,* District Judge.
(Filed: August 8, 2006)
*Honorable William H. Yohn, Jr., Senior District Judge for the
United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
___________
David R. Fine, Esq.(Argued)
Kirkpatrick & Lockhart
Nicholson Graham
17 North Second Street, 18th Floor
Harrisburg, PA 17101
Counsel for Appellant
Richard G. Andrews, Esq.(Argued)
Office of the United States Attorney
1007 Orange Street, Suite 700
Wilmington, DE 19899
Counsel for Appellee
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
This appeal presents a question of appellate procedure.
Specifically, it implicates our practice of permitting petitions for
rehearing en banc to be filed “out of time” and recalling our
mandate so that these petitions may be considered by the full
court. The issues here can be reduced to this inquiry: Does an
2
untimely petition for rehearing en banc become timely when we
permit its filing “out of time,” thus starting the clock anew for
habeas petitions? We conclude that it does, and hence, will
reverse the District Court.
I.
Appellant Parris Wall was convicted of various drug
offenses in the United States District Court for the District of
Delaware. He was originally sentenced to 180 months’
imprisonment and five years of supervised release. On direct
appeal, we affirmed his conviction, but vacated the term of
supervised release and remanded for re-sentencing. On June 21,
2001, the District Court re-sentenced Wall to three years’
supervised release. Wall appealed again. The Government filed
a Motion for Summary Affirmance which we granted on
September 27, 2001. The Clerk of Court issued our mandate in
the case on October 19, 2001. On December 15, 2001, before
3
expiration of the ninety-day time period to file a petition for
certiorari, Wall filed a document entitled “Motion for rehearing
en banc or consideration of direct review” which our clerk’s
office appropriately construed as a motion for leave to file a
petition for rehearing out of time.
On April 1, 2002, our late colleague, Judge Carol
Mansmann granted the motion to file a petition for rehearing out
of time and ordered that the petition be circulated to the full
court. This was in full accord with our common practice of
showing leniency to an aggrieved party who wants the full court
to rethink a panel’s order and who files a petition within a
reasonable time.1 On April 3, 2002, the Clerk’s Office issued
an order recalling our mandate of October 19, 2001. On April
1.
We generally consider a motion to file a petition for rehearing
“out of time” reasonable when the request is made within the
ninety day period for filing a petition for writ of certiorari.
Likewise, we generally consider a delay unreasonable when the
motion is made after the ninety-day period has expired.
4
22, 2002, the Petition for Rehearing was denied. On July 1,
2002, Wall filed a petition for writ of habeas corpus in the
District Court. After receiving notice required by United States
v. Miller, 197 F.3d 644 (3d Cir. 1999), Wall withdrew his
petition.
On January 15, 2003, Wall filed a second § 2255
petition. The Government argued that this petition was
untimely. The District Court agreed and dismissed it.
II.
In determining that Wall’s petition for habeas corpus
relief was untimely, the District Court correctly noted that §
2255 requires petitions to be filed within one year after the date
on which the direct appeal from the criminal conviction
becomes final. The District Court reasoned that Wall’s petition
for rehearing was not timely when originally filed and opined
that the ninety-day period in which he could seek certiorari
5
began on September 27, 2001, the date we summarily affirmed
his conviction and re-calculated sentence. Using this date as a
beginning reference, the District Court concluded that Wall was
required to have his habeas petition filed no later than December
26, 2002. Hence, it dismissed his habeas petition, which was
filed on January 15, 2003.2
2.
When the District Court dismissed Wall’s habeas petition, it
noted that we granted a certificate of appealability in United
States v. Bendolph. The District Court noted that:
Although Bendolph involved circumstances in
which the Court sua sponte raised the limitations
period, the Third Circuit has granted a certificate
of appealability to consider the issue of whether,
assuming the court had the authority to sua sponte
raise the limitations period, the defendant’s §
2255 motion should have been deemed timely in
light of the Supreme Court having accepted for
filing his untimely petition for certiorari review.
Although the circumstances in Bendolph are not
identical to the circumstances in this case, the
court believes they are sufficiently analogous to
justify the granting of a certificate of
appealability. Accordingly, the court will grant
defendant a certificate of appealability so that he
(continued...)
6
III.
It is not disputed that following the normal course of
events, Wall’s petition for rehearing en banc was filed out of
time. Fed. R. App. P. 40(1) provides that petitions for rehearing
in civil cases where the United States is a party (as here) must
be filed within 45 days after the entry of judgment. We entered
judgment in his case on September 27, 2001 and he filed a
petition for rehearing on December 15, 2001 – clearly longer
than forty-five days. Nonetheless, as is our traditional practice,
we deemed his petition as a “motion to file petition for rehearing
out of time,” and granted it. As noted, the petition for rehearing
was denied on April 22, 2002.
2.
(...continued)
may pursue this issue before the Third Circuit.
The opinion in Bendolph did not address the issue that caused
the District Court in this case to grant a certificate of
appealability. See United States v. Bendolph, 409 F.3d 155, 169
(3d Cir.2005) (en banc).
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28 U.S.C. § 2255 requires that habeas petitions be filed
within one year after a judgment becomes final. Wall argues
that his appeal was not final until ninety days after we denied his
petition for rehearing, making his appeal final on July 21, 2002.
He argues that since his habeas petition was filed on January 15,
2003, he is well within the one-year statute of limitations. We
agree.
The Supreme Court’s precedent is clear with respect to
certiorari petitions — the filing of a petition for rehearing stops
the ninety-day clock. Here, however, Wall did not file a petition
for writ of certiorari, but instead filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2255. Because the
procedural posture here with respect to habeas petitions is not
materially different from petitions for writs of certiorari, a look
at Supreme Court practice with respect to timeliness, finality,
and tolling in that context is instructive.
8
Supreme Court Rule 13.3 requires that a petition seeking
a writ of certiorari must be filed within ninety days of the
“denial of a timely petition for rehearing.” If a defendant does
not file a petition for writ of certiorari, the one-year habeas
clock begins to run ninety days after the court of appeals denies
a petition for rehearing.
Supreme Court Rule 13.3 provides that:
The time to file a petition for writ of certiorari
runs from the date of entry of the judgment or
order sought to be reviewed, and not from the
issuance date of the mandate (or its equivalent
under local practice). But, if a petition for
rehearing is timely filed in the lower court by any
party, the time to file the petition for a writ of
certiorari for all parties (whether or not they
requested rehearing or joined in the petition for
rehearing) runs from the date of the denial of the
petition for rehearing or, if the petition for
rehearing is granted, the subsequent entry of
judgment.3
3.
The Supreme Court revised this rule, effective May 2,
2005. As it now reads, the rule indicates that:
(continued...)
9
In Hibbs v. Winn, the Supreme Court further clarified this
rule by commenting that:
A timely rehearing petition, a court’s appropriate
decision to entertain an untimely rehearing
petition, and a petition filed at the court’s
direction, on its own initiative, . . . share this key
characteristic: all three raise the question whether
3.
(...continued)
The time to file a petition for a writ of certiorari runs
from the date of entry of the judgment or order sought to
be reviewed, and not from the issuance date of the
mandate (or its equivalent under local practice). But if a
petition for rehearing is timely filed in the lower court by
any party, or if the lower court appropriately
entertains an untimely petition for rehearing or sua
sponte considers rehearing, the time to file the petition
for a writ of certiorari for all parties (whether or not they
requested rehearing or joined in the petition for
rehearing) runs from the date of the denial of rehearing
or, if rehearing is granted, the subsequent entry of
judgment.
(emphasis added). This most recent revision to the rule only
reenforces our conclusion that an untimely petition for rehearing
becomes timely when we permit its filing and consideration.
Neither Hibbs v. Winn 542 U.S. 88, 124 S. Ct. 2276, 2284 (2004)
nor Rule 13.3 discuss when it is appropriate to consider an
untimely petition for rehearing.
10
the court will modify the judgment and alter the
parties’ rights.
542 U.S. 88, 96, 124 S. Ct. 2276, 2284 (2004) citing Missouri
v. Jenkins, 495 U.S. 33, 46, 110 S. Ct. 1651, 1664 (1990) (“A
timely petition for rehearing operates to suspend the finality of
the court’s judgment, pending the court’s further determination
whether the judgment should be modified so as to alter its
adjudication of the rights of the parties.”).4
The Supreme Court has also indicated that, even though
a petition for rehearing was filed late, if a court of appeals grants
permission to file, it becomes timely and the ninety-day clock
for filing petitions for writs of certiorari is reset. See Young v.
Harper, 520 U.S. 143, 117 S. Ct. 1148, 1151 (1997) (Although
petition for rehearing was filed two days late, the Court of
4.
The District Court did not have the benefit of the clarification
of Rule 13.3 or the Court’s decision in Hibbs when it issued its
decision in this case.
11
Appeals for the Tenth Circuit granted the petitioners leave to file
a late petition for rehearing and suggestion for rehearing en banc
as it had authority to do. See Fed. R. App. P. 40(a). Thus the
Court tolled the running of the ninety-day period for filing a
petition for writ of certiorari.).
As the Supreme Court has further instructed, “it has been
the consistent practice of the Court to treat petitions for
rehearing timely presented to the Court of Appeals as tolling the
start of the period in which a petition for certiorari must be
sought until rehearing is denied or a new judgment is entered on
rehearing.” Jenkins, 495 U.S. at 43, 110 S.Ct. at 1660.5 Simply
stated, while a petition for rehearing is pending there always
5.
However, the Supreme Court has held that it is inappropriate to
hear an untimely petition for the purpose of resetting the clock
to file for a writ of certiorari, Missouri v. Jenkins, 495 U.S. at
46, or to evade the requirements of 28 U.S.C. § 2244 for second
or successive petitions. See Calderon v. Thompson, 523 U.S.
538, 118 S. Ct. 1489 (1998).
12
exists the possibility that it will be granted, and there is no final
judgment to review.
Wall’s procedural position before us is not different.
Here too, once we granted permission for Wall to file his
petition for rehearing late, it became timely. Once we gave him
permission to file his petition out of time and he filed it, our
judgment could not be considered final until we denied his
petition. While his petition for rehearing was pending, there
was no judgment to be challenged either in the Supreme Court
by a petition for a writ of Certiorari, or in an inferior court by
habeas review. Our judgment in Wall’s appeal was not final
until ninety days after we denied his petition for rehearing. We
hold that when we grant permission for an aggrieved party to
file a petition for rehearing out-of-time, the one-year calendar
for filing §2255 petitions starts anew ninety days after the order
denying the petition is filed. Because Wall’s petition was
13
timely, we will reverse and remand the cause to the District
Court with instructions to reinstate his petition, and to review it
on the merits.
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