Raineri v. United States

United States Court of Appeals
For the First Circuit

No. 99-2359

BRUCE T. RAINERI,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Selya, Boudin and Stahl,

Circuit Judges.

Tina Schneider, by appointment of the court, for appellant.
Peter E. Papps, Assistant United States Attorney, with whom
Paul M. Gagnon, United States Attorney, was on brief, for
appellee.

December 1, 2000
 SELYA, Circuit Judge. The federal courts historically

have been solicitous of the rights of pro se litigants. E.g.,

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Prou

v. United States, 199 F.3d 37, 42 (1st Cir. 1999). As part and

parcel of that solicitude, courts frequently have

recharacterized inartfully drawn pleadings to assist pro se

prisoners who mistakenly relied on inappropriate rules or

statutes. The enactment of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110

Stat. 1214 (1996) (codified in scattered sections of 28 U.S.C.)

altered the dynamics of this entrenched practice in respect to

post-conviction motions in criminal cases. Under AEDPA, a

prisoner, whether federal or state, retains the right to press

a first petition for a writ of habeas corpus — but second or

successive petitions may be pressed only under very limited

circumstances. See 28 U.S.C. §§ 2255, 2244(b). This change in

the law raised the stakes attendant to recharacterizing a post-

conviction motion as a habeas petition: conversion, though

initially meant to guide a prisoner through the thicket of legal

technicalities, suddenly had the potential to deprive him of his

one full and fair opportunity to seek habeas relief.

This appeal requires us to answer a pointed question:

When a district court, acting sua sponte, recharacterizes a

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federal prisoner's post-conviction motion as a section 2255

petition, see 28 U.S.C. § 2255,1 does that action render the

prisoner's later attempt to file a section 2255 petition a

second or successive petition within the purview of the AEDPA

amendments? This is an unanswered query in this circuit, but

one that has divided the courts of appeals elsewhere. Compare

United States v. Miller, 197 F.3d 644, 652 (3d Cir. 1999)

(holding that if a district court chooses to recharacterize a

pro se prisoner's post-conviction motion as a habeas petition,

it first must take prophylactic measures to warn the prisoner of

the consequences of the conversion under AEDPA and give him the

opportunity to withdraw the pleading), and Adams v. United

States, 155 F.3d 582, 584 (2d Cir. 1998) (per curiam) (similar),

with In re Tolliver, 97 F.3d 89, 90 (5th Cir. 1996) (per curiam)

(applying AEDPA's "second or successive" requirements to bar

relief when the district court had construed a pro se prisoner's

prior pleading as a section 2255 petition). We take a view

similar to, but more narrowly confined than, the Miller and

1In terms, 28 U.S.C. § 2255 speaks of a "motion" rather than
a "petition," yet the latter word is more commonly used to
describe the vehicle by which a person held in custody seeks
post-conviction relief. Accordingly, we use the term "petition"
throughout this opinion in order to avoid confusion. By the
same token, we use the phrases "section 2255 petition," "habeas
petition," and "petition for post-conviction relief"
interchangeably.

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Adams courts. In the end, we reverse the order of dismissal and

remand for further proceedings.

I.

Background

On April 6, 1992, a federal grand jury in the District

of New Hampshire indicted petitioner-appellant Bruce T. Raineri

for conspiring to obstruct commerce by robbery involving force

or violence, using or carrying a firearm in connection with that

conspiracy, and being a felon in possession of a firearm. See

18 U.S.C. §§ 1951, 924(c)(1), 922(g). The petitioner pled

guilty to all three charges on June 17, 1992. He tried to

withdraw his plea twice thereafter. Both efforts failed

(although the government did agree to dismiss the felon-in-

possession count).

On September 27, 1993, the district court (Devine, J.)

sentenced the petitioner to a ten-year incarcerative term, to be

followed by a five-year term of supervised release. The court

also ordered the petitioner to make restitution and pay a $100

special assessment. The petitioner appealed, alleging that his

guilty plea was not knowing, voluntary, or properly informed.

We found the change-of-plea hearing to have been contaminated by

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"a set of mistakes." United States v. Raineri, 42 F.3d 36, 40

(1st Cir. 1994). We nonetheless concluded that those bevues

were harmless and that the district court acted within its

discretion in denying the petitioner's serial motions to

withdraw his plea. Id. at 42-44. Accordingly we affirmed the

conviction and sentence (in the process rejecting the

petitioner's quest for a downward departure).2 Id. at 44. The

United States Supreme Court thereafter denied certiorari. 515

U.S. 1126 (1995).

On January 22, 1996, the petitioner, acting pro se,

filed what he termed a "Motion for Correction of Sentence and/or

New Trial." He brought the motion "pursuant to Fed. R. Crim. P.

Rule 35 and/or Rule 33" and alleged that the government's

proffer at the change-of-plea hearing had been insufficient as

a matter of law in respect to the firearms count under a newly-

decided Supreme Court case, Bailey v. United States, 516 U.S.

137 (1995). On July 11, 1996, Judge Devine, acting sua sponte,

found Rules 33 and 35 inapplicable, but recharacterized the

petitioner's motion as an application for post-conviction relief

2
We did, however, remand to clarify an ambiguity as to
whether the dismissal of the felon-in-possession count operated
with prejudice. Raineri, 42 F.3d at 43. On remand, the
district court satisfactorily resolved that uncertainty.

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under 28 U.S.C. § 2255. The judge then denied the

recharacterized motion on the merits.

The petitioner promptly filed a notice of appeal. We

treated the notice as an application for a certificate of

appealability, see 28 U.S.C. § 2253(c), found it meritless, and

terminated the erstwhile appeal.3 The petitioner again sought

certiorari, but to no avail. 522 U.S. 879 (1997).

On April 21, 1997, the petitioner, still appearing pro

se, filed a "Motion under 28 U.S.C. § 2255 to Vacate, Set Aside

or Correct Sentence." This motion raised a plethora of claims,

including prosecutorial misconduct, ineffective assistance of

trial and appellate counsel, and an assortment of supposed

errors attributable to the district court. The petitioner

supplemented this pleading on several occasions, endeavoring to

add more issues.

The 1997 habeas petition languished for over two years,

due in part to the untimely death of Judge Devine. Eventually,

however, the file was reassigned to Judge McAuliffe. On July

26, 1999, the government responded for the first time to the

petitioner's pleadings, alleging, inter alia, that the pending

section 2255 petition was Raineri's second such petition, and

3The petitioner filed several other motions in connection
with his appeal. For present purposes, those motions are
immaterial and we need not dwell on the details.

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that he had failed to receive the requisite authorization from

the court of appeals to proceed with a second or successive

habeas petition. See 28 U.S.C. § 2244(b)(3)(A) (as incorporated

in 28 U.S.C. § 2255); see also Pratt v. United States, 129 F.3d

54, 58 (1st Cir. 1997) (discussing statutory regime), cert.

denied, 523 U.S. 1123 (1998). The petitioner replied that he

had no need to go through the authorization procedure because

the pending petition constituted his first such filing.

On December 8, 1999, Judge McAuliffe resolved this

dispute in the government's favor. He ruled, in substance, that

the recharacterized 1996 motion counted as a habeas petition for

AEDPA purposes, and that, therefore, the pending petition was a

second petition under the statute. On this basis, he held that

the district court lacked jurisdiction to consider the petition

and transferred the matter to this court to determine whether a

certificate of appealability should issue. See 28 U.S.C. §

2253(c).

At our direction, the petitioner prepared an

application for leave to file a second or successive petition.

At the same time, he renewed his asseveration that the pending

petition actually was his first, and that he needed no special

authorization to proceed in the district court. Recognizing the

subtlety of the problem, we authorized the appointment of

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counsel for the petitioner on April 14, 2000, and ordered the

parties to brief the question of whether sua sponte

recharacterization of an earlier motion as a section 2255

petition can trigger AEDPA's "second or successive"

requirements. It is to that question that we now turn.

II.

Discussion

AEDPA, which took effect on April 24, 1996, imposes

substantial procedural restrictions on second or successive

habeas petitions. Of particular relevance here, AEDPA

incorporates by reference in section 2255 the same screen that

it makes applicable to second or successive habeas petitions

prosecuted on behalf of state prisoners: it requires a federal

prisoner, before prosecuting a second or successive habeas

petition in the district court, to obtain from "the appropriate

court of appeals . . . an order authorizing the district court

to consider the application." 28 U.S.C. § 2244(b)(3)(A) (as

incorporated in 28 U.S.C. § 2255). In turn, AEDPA directs the

court of appeals to exercise this gatekeeping power sparingly,

in conformity with a rigorous set of substantive standards. See

Pratt, 129 F.3d at 60-63 (discussing statutory provision and

concomitant standards). Despite the fact that the petitioner's

initial Rule 33/Rule 35 motion in this case was filed before

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AEDPA's effective date, it nonetheless has the capacity to

trigger the new requirements for second or successive petitions.

See id. at 60 (holding that if a prisoner filed a section 2255

petition prior to AEDPA's effective date and thereafter lost on

the merits, then a subsequent section 2255 petition, filed after

AEDPA's effective date, must satisfy the procedural strictures

that AEDPA attaches to second or successive habeas petitions).

The question, then, reduces to whether a pro se petitioner's

recharacterized pleading should be deemed a habeas petition for

AEDPA purposes.

The Fifth Circuit answered this question affirmatively

in Tolliver, 97 F.3d at 90. But that answer seems to lead to a

perverse result: a judge who strives to balance the scales of

justice by construing pro se prisoner pleadings liberally risks

precluding the pleader from any opportunity to litigate

potentially meritorious constitutional claims. Mindful of this

anomaly, the Second Circuit, in Adams, 155 F.3d at 584, and the

Third Circuit, in Miller, 197 F.3d at 652, have answered similar

questions in the negative. Withal, the Adams court embellished

its answer by imposing a limitation on the ongoing authority of

the district courts. It declared that:

[D]istrict courts should not recharacterize
a motion purportedly made under some other
rule as a motion made under § 2255 unless
(a) the movant, with knowledge of the

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 potential adverse consequences of such
recharacterization, agrees to have the
motion so recharacterized, or (b) the court
finds that, notwithstanding its designation,
the motion should be considered as made
under § 2255 because of the nature of the
relief sought, and offers the movant the
opportunity to withdraw the motion rather
than have it so recharacterized.

Adams, 155 F.3d at 584. Miller advocated a nearly identical

rule. 197 F.3d at 652.

With respect, we believe that Adams and Miller sweep

more broadly than the exigencies of this situation require.

Those decisions not only ameliorate the problem but also burden

the district courts with a new protocol. We are reluctant to

emulate that example. After all, there are times, even after

AEDPA, when recharacterization will be to a pro se litigant's

benefit, or in the interests of justice, or otherwise plainly

warranted. Consequently, we do not think that we should

discourage overburdened district courts from pursuing a

sometimes useful practice by forcing them to jump through extra

hoops. Doing so might well result in losing the baby along with

the bath water.

In any event, the problem presented in cases like this

can be resolved without risking such unfortunate consequences.

"The phrase 'second or successive petition' is a term of art,"

designed to avoid abuse of the writ. Slack v. McDaniel, 120 S.

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Ct 1595, 1605 (2000). Thus, not every post-conviction motion,

nor even every habeas petition, furnishes the foundation for

treating a subsequent habeas petition as "second or successive."

E.g., id. (holding that a habeas petition dismissed for want of

exhaustion cannot serve as a basis for subsequently invoking the

"second or successive" requirements); Stewart v. Martinez-

Villareal, 523 U.S. 637, 644-45 (1998) (holding to like effect

with regard to a habeas petition dismissed as premature). Along

these lines, we do not believe that a pro se pleading which is

neither denominated as a habeas petition nor substantially

equivalent to a habeas petition can function as a proper

predicate for purposes of the "second or successive" regime

merely because the trial court, acting without advance notice

to, or the informed consent of, the pleader, spontaneously

recharacterizes it as a habeas petition. We hold, therefore,

that when a district court, acting sua sponte, converts a post-

conviction motion filed under some other statute or rule into a

section 2255 petition without notice and an opportunity to be

heard (or in the alternative, the pleader's informed consent),

the recharacterized motion ordinarily will not count as a

"first" habeas petition sufficient to trigger AEDPA's

gatekeeping requirements.

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 This holding disposes of the instant appeal. The

petitioner's original motion was not premised upon section 2255

at all, but, rather, upon Rules 33 and 35. Having dictated the

terms of engagement, the petitioner was entitled to have his

motion decided as he had framed it.4 The district court could

not, without the petitioner's informed consent, transmogrify

that motion into a habeas petition sufficient to extinguish the

petitioner's one clear chance at habeas relief under AEDPA. For

that reason, the district court should have treated the instant

application as a "first" habeas petition.

Let us be perfectly clear. We do not doubt that the

district court, in recharacterizing the petitioner's pleading,

was endeavoring to treat a pro se litigant fairly. We applaud

that solicitude. But, because the court acted sua sponte and

without any advance notice to the petitioner, we cannot treat

the earlier pleading as a "first" habeas petition for AEDPA

purposes. It follows inexorably that the district court erred

in deeming the current pleading a "second or successive" habeas

petition.

4 The motion, as submitted, was a losing proposition. Rule
33 was inapplicable because the petitioner's conviction did not
follow a trial, see, e.g., United States v. Graciani, 61 F.3d
70, 78 (1st Cir. 1995), and Rule 35 was inapplicable on its
face. Thus, the district court could have denied it out of
hand.

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 III.

Conclusion

In an era in which Congress has seen fit to narrow the

doorway to habeas relief, fairness concerns dictate that courts

take care not to apply the new law woodenly. So it is here:

under the circumstances of this case, the petitioner's Rule

33/Rule 35 motion, notwithstanding its sua sponte

recharacterization by the district court, cannot be considered

a "first" habeas petition within the meaning of AEDPA. And if

that motion was not a "first" petition, the application at issue

here cannot be a "second" petition.

We need go no further. For these reasons, we reverse

the order of dismissal, vacate the transfer order, and remand

the case to the district court for further proceedings

consistent with this opinion. The petitioner's provisional

application for leave to file a second or successive habeas

petition, prepared at our direction, is deemed withdrawn.

Reversed and remanded.

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