UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk
September 15, 1997
TO: All recipients of the captioned order
RE: 97-740, USA v. Scott
August 26, 1997
Please be advised of the following correction to the captioned decision:
On the top of page five, “his direct criminal was pending . . .” should read “his
direct criminal case was pending . . .” Please make the correction.
Very truly yours,
Patrick Fisher, Clerk
Susie Tidwell
Deputy Clerk
PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 97-740
CIV-97-717-T
WALLIE A. SCOTT,
Defendant - Appellant.
ORDER
Filed August 26, 1997
Before PORFILIO, ANDERSON and BRORBY, Circuit Judges.
PER CURIAM.
This matter is before the court on Wallie A. Scott’s motion for authorization
to file a second 28 U.S.C. § 2255 motion in the district court pursuant to the
Antiterrorism and Effective Death Penalty Act (AEDPA).
Mr. Scott originally filed his § 2255 motion in the district court. The district
court, after concluding that the motion was a second or successive motion,
transferred the matter to this court pursuant to Coleman v. United States, 106 F.3d
339, 341 (10th Cir. 1997). Mr. Scott was then given 30 days to file a proper motion
seeking authorization to file the petition. Id. Mr. Scott subsequently filed a motion
for permission in this court.
The grounds which Mr. Scott wishes to present in this § 2255 include
ineffective assistance of both trial and appellate counsel.
Mr. Scott was convicted in 1989, following a jury trial, of conspiracy to
possess with intent to distribute cocaine base and possession with intent to distribute
cocaine base. He was sentenced in December 1989 to 240 months incarceration. Mr.
Scott’s retained counsel did not file a notice of appeal.
In November 1991 Mr. Scott filed a § 2255 motion. Proceeding pro se, he
alleged that his counsel failed to file an appeal. The district court judge entered an
order granting the § 2255 motion, scheduling a resentencing hearing, and appointing
counsel. At resentencing, the court imposed the same sentence originally imposed.
Mr. Scott, represented by appointed counsel, appealed the conviction and sentence.
This court affirmed.
The “gatekeeping” function of the courts of appeals set forth in AEDPA was
upheld in Felker v. Turpin, 116 S.Ct. 2333 (1996). The Court concluded that this
function is within the mainstream of the evolving jurisprudence to curb abuse of the
writ.
The new restrictions on successive petitions constitute a
modified res judicata rule, a restraint on what is called in
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habeas corpus practice “abuse of the writ.” In McCleskey
v. Zant [499 U.S. 467, 491-92 (1991)], we said that “the
doctrine of abuse of the writ refers to a complex and
evolving body of equitable principles informed and
controlled by historical usage, statutory developments, and
judicial decisions.” The added restrictions which the
[AEDPA] places on second habeas petitions are well
within the compass of this evolutionary process, and we
hold that they do not amount to a ‘suspension’ of the writ
contrary to Article I, § 9 [of the Constitution].
Id. at 2340 (citations omitted).
While AEDPA instituted this gatekeeping procedure for second or successive
habeas petitions, it does not define what is meant by “second or successive.” In
Reeves v. Little, ___ F.3d ___, No. 97-741 (10th Cir. Aug. 13, 1997), 1997 WL
459783, this court determined that, where the petitioner’s first § 2254 petition was
filed as part of the Harris v. Champion litigation 1, a subsequent petition was not
successive under AEDPA. Reeves used the abuse of the writ standard in effect
before AEDPA was enacted to determine whether the subsequent § 2254 petition
should be considered successive under AEDPA.
1
In this series of cases, including Harris v. Champion, 15 F.3d 1538 (10th Cir.
1994), Harris v. Champion, 938 F.2d 1062 (10th Cir. 1991) and Hill v. Reynolds, 942
F.2d 1494 (10th Cir. 1991), this court examined the Oklahoma criminal appellate process
insofar as it contributed to delay in deciding direct criminal appeals of indigent
defendants.
3
The unique situation presented in the Harris cases
prevented Mr. Reeves from presenting claims other than
the issue of whether the delay in his appellate review
violated his due process rights. . . .
. . .[I]f the instant petition is considered a second or
successive one under AEDPA any other claims which
existed at the time the first petition was filed would be
foreclosed from federal review. This “would conflict with
the doctrine of writ abuse as understood both before and
after Felker.” To construe these subsequent petitions as
second or successive, “far from falling ‘well within the
compass’ of the evolving doctrine of abuse of the writ, as
stated in Felker, would unjustifiably deviate from that
evolution.”
Reeves v. Little, id. at *3 (quoting Camarano v. Irvin, 98 F.3d 44, 46 (2d Cir. 1996)).
See also McWilliams v. State of Colorado, ___ F.3d ___, No. 96-1328 (10th Cir.
Aug. 11, 1997), 1997 WL 452575, * 2-3 (holding that “a [§ 2254] petition filed after
a prior petition is dismissed without prejudice for failure to exhaust state remedies
does not qualify as a ‘second or successive’ application” within the meaning of
AEDPA.).
Here, when the district court resentenced Mr. Scott following the filing of his
first § 2255 motion, the resentencing enabled Mr. Scott to perfect his direct appeal.
See United States v. Davis, 929 F.2d 554, 557 (10th Cir. 1991). The purpose of the
resentencing was to place the defendant “back into the position he would have been
had counsel perfected a timely notice of appeal.” United States v. Saucedo, 950 F.2d
1508, 1511 (10th Cir. 1991). In fact, on appeal from the resentencing, this court
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treated the matter as a direct criminal appeal. See United States v. Scott, No. 92-
6272 (10th Cir. 1993), 1993 WL 411596.
In addition, a § 2255 motion should not be considered before the disposition
of the direct criminal appeal. In United States v. Cook, 997 F.2d 1312 (10th Cir.
1993), the defendant filed a motion in the district court styled “writ of habeas corpus
and/or motion for new trial and/or motion to dismiss” while his direct criminal was
pending in the court of appeals. The district court construed this motion as the
defendant’s first § 2255 motion and concluded that a claim for ineffective assistance
of counsel raised in a subsequent § 2255 motion constituted abuse of the writ. This
court held that the district court erred in characterizing the subsequently filed motion
as a second § 2255 motion.
Although Defendant filed a motion styled “writ of habeas
corpus and/or motion for new trial and/or motion to
dismiss,” which apparently was construed by the district
court to be his first § 2255 motion, he filed the motion on
April 3, 1990, approximately a year and a half before we
decided Defendant’s direct appeal. Absent extraordinary
circumstances, the orderly administration of criminal
justice precludes a district court from considering a § 2255
motion while review of the direct appeal is still pending.
We therefore conclude that when the district court
considered Defendant’s [first] motion, it did so only as a
motion for a new trial and motion to dismiss, and not as a
habeas petition or § 2255 motion.
Id. at 1318-19 (citations omitted).
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Furthermore, Mr. Scott’s ineffective assistance of appellate counsel claim did
not even exist until the direct appeal process concluded. See Martinez-Villareal v.
Stewart, 118 F.3d 628 (9th Cir. 1997)(competency-to-be-executed claim may be
raised in a subsequent habeas petition because such claim is not ripe until the first
petition has been denied). It is also questionable whether Mr. Scott could have
raised his ineffective assistance of trial counsel claim in the prior proceeding. See
United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995)(en banc)
(“Ineffective assistance of counsel claims should be brought in collateral
proceedings, not on direct appeal. Such claims brought on direct appeal are
presumptively dismissable, and virtually all will be dismissed.”). Thus these issues
would be precluded from review if the instant motion is construed as a second
motion under AEDPA.
Thus, as in Reeves, because of the unique situation presented when the
granting of the prior motion merely reinstated the right to a direct appeal, the first
subsequent motion is not a second or successive motion under AEDPA.
Accordingly, the district court order is VACATED and the matter is
REMANDED to the district court for such other and further proceedings as may be
just and proper.
6