United States v. Orozco

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 2, 1997
• Docket: 96-50402
• Status: Published

Opinion

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

- 2 - 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 ___,

- 3 - 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).

- 4 - 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);

- 5 - 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

- 6 - 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 ___,

- 7 - 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

- 8 - 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

- 9 - 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.

- 10 -