United States Court of Appeals
For the First Circuit
No. 02-1645
FELIX MATEO,
a/k/a Manuel Lluberes, Johnny Rodriguez,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
James P. Bardsley and Law Office of Bardsley & Gray on Motion
Attacking the Sentence Imposed by this Court, Pursuant to Section
2255 of Title 28 of the United States Code for petitioner.
James P. Bardsley and Law Office of Bardsley & Gray on Motion
for the Issuance of a Certificate of Appealability Pursuant to
F.R.A.P. 22(b) and Loc. R. 22.1 for petitioner.
James P. Bardsley and Law Office of Bardsley & Gray on
Memorandum in Support of Motion for the Issuance of a Certificate
of Appealability Pursuant to F.R.A.P. 22(b) and Loc. R. 22.1 for
petitioner.
Michael J. Pelgro, Assistant United States Attorney, and
Michael J. Sullivan, United States Attorney, on Memorandum in
Opposition to Petitioner's Motion Under 28 U.S.C. § 2255 for the
United States.
November 7, 2002
BOUDIN, Chief Judge. Mateo pled guilty, pursuant to a
written plea agreement, to various federal drug related offenses.
The district court found that Mateo's offenses occurred at a time
when he was the subject of an outstanding state warrant for
probation violation. Under the Sentencing Guidelines, this equates
to the commission of a federal crime while under sentence for
another crime and raised Mateo's criminal history score and (in all
likelihood) his ultimate federal sentence. See U.S.S.G. §§
4A1.1(d), 4A1.2(m). After being sentenced, Mateo filed a notice of
appeal and, while the appeal was pending, succeeded in obtaining a
state court termination of the probation warrant nunc pro tunc to
a time apparently before the alleged federal offenses.
On direct appeal, this court declined to consider the
state court order. United States v. Mateo, 271 F.3d 11 (1st Cir.
2001) ("Mateo I"). The court said that it was procedurally barred
from addressing the nunc pro tunc order because, as the order was
issued after the district court imposed its sentence, a proffer of
the order was not made below. Id. at 15. The opinion continued,
"[E]ven were we to consider the nunc pro tunc order, [Mateo] would
not be advantaged," because under federal law "the district court
takes the state-court record as it finds it." Id. at n.4.
Mateo then petitioned under 28 U.S.C. § 2255 (2000),
raising the same claim that was denied on direct appeal. The
section 2255 motion was denied by the district court, which felt
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itself foreclosed under Mateo I from considering a collateral
attack based on the vacated state warrant. Mateo now seeks a
certificate of appealability ("COA") from this court under 28
U.S.C. § 2253 (2000).
Under section 2253, Mateo must make a "substantial
showing of the denial of a constitutional right" before a COA can
be granted. Here his habeas petition was denied based on the
district court's interpretation of Mateo I's mandate, a non-
constitutional ground. Thus, section 2253 would appear on its face
to bar us from issuing a COA. However, the Supreme Court has held
that the statute permits a COA to be granted where a supposed
antecedent procedural bar prevented the district court from
reaching the constitutional claim--if (1) the soundness of the
procedural ruling is debatable, and (2) the constitutional claim is
also colorable. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
The first requirement is easily met. The district court
was right to be cautious; the mandate rule requires the district
court to respect the appellate mandate. United States v. Rowe, 268
F.3d 34, 41-42 (1st Cir. 2001). But here the main holding in
Mateo I does not apply because the state court order now is part of
the record. As for the further comment quoted above--that Mateo
would not be advantaged even had we considered the nunc pro tunc
order--we think this meant only that the district court had not
erred as the record before it stood; the court in Mateo I should
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not be taken to have decided in a brief comment a very difficult
set of substantive issues concerning the consequence of a post-
sentencing vacation of a state sentence that affected the federal
sentence.
Slack's second requirement--that there be a plausible
constitutional claim before a COA can be granted--is a more serious
problem for Mateo. Let us assume arguendo (we will return to this
issue) that the later vacation of the state order renders Mateo's
federal sentence vulnerable in a section 2255 proceeding, even
though the sentencing judge acted properly on the record before
her. Even so, it is hard to see why this raises a constitutional
question, especially as Mateo makes no claim to us that the state
court probation warrant was itself constitutionally defective.1
Why Congress chose to limit COAs to constitutional
defects is not entirely apparent. Cf. 28 U.S.C. § 2244(b)(2)
(2000) (limiting second habeas petitions to new law or newly
discovered evidence); Jamison v. United States, 244 F.3d 44, 47
(1st Cir. 2001). Any assumption that constitutional claims are
always critically important, and non-constitutional ones always
less so, would not wash; there are Fourth Amendment claims that
turn on whether an object sits in the glove compartment of a car or
in the trunk, see, e.g., New York v. Belton, 453 U.S. 454, 460 n.4
(1981), and some non-constitutional rulings (say, a misreading of
1
On the contrary, it appears that Mateo's claim in state court
was that the warrant was defective under state law.
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a guideline) that could double the time spent in jail. Still, this
is the line that Congress has drawn.
Nevertheless, Mateo does assert that he has a
constitutional claim, and it may not have been properly developed
because the government invoked, and the district court accepted,
the mandate-bar argument. Under these circumstances, the Seventh
Circuit has adopted the view that, if the petitioner's
constitutional claim does not appear utterly without merit after a
"quick look," the COA can be granted and an incorrect procedural
barrier removed, the matter then being remanded to give the
district court first crack at the constitutional claim. Jefferson
v. Welborn, 222 F.3d 286, 289 (7th Cir. 2000); accord Evicci v.
Commissioner of Corrections, 226 F.3d 26, 28 (1st Cir. 2000).
This is a variation on Slack and one not presented or
endorsed in that case. But the Seventh Circuit's approach reflects
the same impulse as Slack to protect nascent constitutional claims;
and it certainly does not bend the language of section 2253 any
more than Slack itself. Cases from our sister circuits look in the
same direction. Gibson v. Klinger, 232 F.3d 799, 802-03 (10th Cir.
2000); Lambright v. Stewart, 220 F.3d 1022, 1026-27 (9th Cir.
2000); cf. Hernandez v. Caldwell, 225 F.3d 435, 438 (4th Cir.
2000); Roberts v. Sutton, 217 F.3d 1337, 1339-40 (11th Cir. 2000).
On remand, Mateo may attempt to develop his supposed
constitutional claim or offer only a non-constitutional claim or
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both. The prospect of a constitutional argument is needed to
permit the COA to be granted; but once back in district court Mateo
is free--on a first section 2255 motion--to proffer non-
constitutional claims. Section 2255, which governs federal habeas,
extends beyond constitutional claims. The critical language reads
as follows:
A prisoner in custody under sentence of
a court established by Act of Congress
claiming the right to be released upon the
ground that the sentence was imposed in
violation of the Constitution or laws of the
United States, or that the court was without
jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum
authorized by law, or is otherwise subject to
collateral attack, may move the court which
imposed the sentence to vacate, set aside or
correct the sentence.
Admittedly, this language has been construed somewhat
less generously than the words alone might suggest. The reference
to "laws" and "otherwise subject to collateral attack" might at
first seem to encompass any non-constitutional legal error, but the
Supreme Court has limited claims of legal error--where neither a
constitutional nor a jurisdictional claim is presented--to alleged
errors that present "a fundamental defect which inherently results
in a complete miscarriage of justice" or "an omission inconsistent
with the rudimentary demands of fair procedure." Hill v. United
States, 368 U.S. 424, 428 (1962); accord David v. United States,
134 F.3d 470, 474 (1st Cir. 1998). We have ourselves held that "a
guideline violation alone is not automatically a basis for relief"
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in a section 2255 proceeding. Cofske v. United States, 290 F.3d
437, 441 (1st Cir. 2002); see also Knight v. United States, 37 F.3d
769, 772-73 (1st Cir. 1994).
On remand, the district court will be faced with
formidably interesting issues, assuming that no superceding
constitutional claim is developed. Quite likely federal law
controls the question whether the nunc pro tunc order of the
Massachusetts court is to be given any effect for the purpose of
the Sentencing Guidelines.2 Cf. Jamison, 244 F.3d at 48
(discussing the relevance of state vacations for federal
sentencing); Fierro v. Reno, 217 F.3d 1, 6 (1st Cir. 2000)
(applying federal law as to whether a state nunc pro tunc order is
relevant for the purpose of citizenship status). If it does, the
answer then may depend on the ground on which the Massachusetts
court acted. U.S.S.G. §§ 4A1.2(j), 4A1.3; id. § 4A1.2 nn. 6 & 10.
And, obviously, the government could argue--though we express no
view as to the merits of such an argument--that one who commits a
new offense while under sentence for an older one deserves a higher
sentence even if the former conviction is later set aside. Cf.
United States v. Snyder, 235 F.3d 42, 52-53 (1st Cir. 2000) (later
2
There is Supreme Court caselaw on the choice of law issue,
interpreting the statute governing felon possession of firearms.
In drawing guidance from these cases, account must be taken of the
statutory amendment that occurred in 1986. Compare Dickerson v.
New Banner Institute, Inc., 460 U.S. 103, 112 (1983), superceded by
Firearms Owners' Protection Act, Pub. L. No. 99-308, § 101(5), 100
Stat. 449, 450 (1986) (codified at 18 U.S.C. § 921(a)(20) (2000));
with Caron v. United States, 524 U.S. 308, 312-17 (1998).
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vacation of predicate state conviction does not invalidate federal
felon possession conviction), cert. denied, 121 S. Ct. 2205 (2001).
If there was an error at all, a further sentencing
question is whether such "error" is cognizable in a section 2255
proceeding. In our circuit, our decision in United States v.
Pettiford, 101 F.3d 199, 201 (1st Cir. 1996), see also Brackett v.
United States, 270 F.3d 60, 64 n.1 (1st Cir. 2001), cert. denied
122 S. Ct. 1575 (2002), might be taken to have answered, helpfully
to Mateo, the question left open by the Supreme Court in Daniels
v. United States, 532 U.S. 374, 382-83 (2001) and Custis v. United
States, 511 U.S. 485, 491-92 (1994). However, the limitations
imposed by Hill and Knight arguably remain.
In short, this case is one of potential importance as
well as difficulty. We have mentioned the problems encountered in
a preliminary look to be sure that they are noticed by counsel; but
it is unwise for us to express any firm view, partly because they
have not yet been briefed and partly because any constitutional
claim Mateo may develop on remand could affect the equation. It is
enough for the present that accepting responsibility ourselves for
any confusion caused by Mateo I, we grant the COA, summarily vacate
the judgment of the district court dismissing the petition for
section 2255 relief, and remand for further proceedings consistent
with this opinion.
It is so ordered.
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