United States v. Orozco-Ramirez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-10090

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER OROZCO-RAMIREZ,

Defendant-Appellant.

Appeal from the United States District Court for the
Northern District of Texas

May 3, 2000

Before POLITZ, GARWOOD and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Javier Orozco-Ramirez (Orozco-Ramirez), currently confined in a

federal correctional institute in El Reno, Oklahoma, filed this federal

habeas corpus motion in the United States District Court for the

Northern District of Texas pursuant to 28 U.S.C. § 2255. The district

court dismissed his motion as “second or successive” under the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Orozco-

Ramirez appeals. We affirm in part and reverse in part.
 Facts and Proceedings Below

On December 16, 1992, Orozco-Ramirez pleaded guilty to distribution

of heroin and conspiracy to distribute heroin in the United States

District Court for the Northern District of Texas. On April 14, 1993,

he was sentenced to 180 months’ imprisonment and a four-year term of

supervised release. No notice of appeal was filed.

On January 30, 1995, Orozco-Ramirez filed a federal habeas corpus

motion pursuant to section 2255 as to his 1993 conviction and sentence.

In that motion, Orozco-Ramirez asserted only one ground for relief:

that he received ineffective assistance of counsel in that his attorney

did not file a notice of appeal despite having been asked to do so.

Following an evidentiary hearing, the magistrate court recommended that

Orozco-Ramirez be allowed an out-of-time appeal. The district court

adopted this recommendation and on January 22, 1996, ordered an out-of-

time appeal. Pursuant to that order, on January 24, 1996, Orozco-

Ramirez filed his notice of appeal from the 1993 conviction and

sentence. Represented by new counsel, Orozco-Ramirez raised on that

direct appeal two issues relating to the quantity of drugs forming the

basis of his 1993 sentence. This Court affirmed Orozco-Ramirez’s

sentence in an unpublished opinion. United States v. Orozco-Ramirez,

No. 96-10120 (5th Cir. Oct. 25, 1996).

On November 3, 1997, Orozco-Ramirez, proceeding pro se and in forma

2
pauperis, filed the instant section 2255 motion1 to vacate his 1993

conviction and sentence, asserting numerous errors including ineffective

assistance of counsel at his sentencing, ineffective assistance of

counsel rendering his guilty plea involuntary, and ineffective

assistance of counsel in the course of his out-of-time direct appeal.2

The magistrate court recommended that Orozco-Ramirez’s motion be

unfiled, because it was “second or successive” and was tendered without

authorization from a court of appeals. Adopting the findings and

recommendation of the magistrate court, the district court ordered that

1
This Court issued its mandate affirming Orozco-Ramirez’s
conviction and sentence on November 20, 1996. Therefore, his November
3, 1997 § 2255 motion was timely under AEDPA. See 28 U.S.C. § 2255 (“A
1-year period of limitation shall apply to a motion under this
section.”).
2
In his motion, Orozco-Ramirez raised the following allegations:
(1) ineffective assistance by trial counsel in failing to litigate a
Fourth Amendment claim; (2) ineffective assistance of trial counsel in
failing to advise him properly about the drug quantity and its
sentencing implications, rendering his guilty plea involuntary; (3)
ineffective assistance of trial counsel in not properly objecting to the
quantity of drugs for sentencing purposes; (4) ineffective assistance
of trial counsel in not objecting to the district court’s alleged
failure to make a specific finding as to Orozco-Ramirez’s ability and
intent to distribute additional quantities of heroin; (5) ineffective
assistance of trial counsel in not objecting to consideration of Orozco-
Ramirez’s wife’s testimony (apparently at another trial) as privileged;
(6) ineffective assistance of trial counsel in not objecting to an
adjustment for Orozco-Ramirez’s role in the conspiracy; (7) ineffective
assistance of trial counsel in not objecting to the district court’s
attributing to Orozco-Ramirez two criminal history points for a federal
case where he was not represented by counsel; (8) ineffective assistance
of trial counsel in not enforcing his right to allocution at sentencing;
and (9) ineffective assistance of appellate counsel by not raising on
the out-of-time appeal the sentencing court’s failure to state its
reasons for imposing a sentence in the middle of the guideline range
found applicable.

3
Orozco-Ramirez’s section 2255 motion not be filed. Orozco-Ramirez filed

a timely notice of appeal, and this Court granted a certificate of

appealability (COA) permitting Orozco-Ramirez’s appeal.3 We now affirm

in part and reverse in part.

Discussion

Enacted on April 24, 1996, AEDPA4 made it significantly harder for

prisoners filing second or successive federal habeas corpus motions to

obtain hearings on the merits of their claims. See Graham v. Johnson,

168 F.3d 762, 772 (5th Cir. 1999), petition for cert. filed, 68 U.S.L.W.

______ (U.S. June 21, 1999) (No. 98-10002). As amended by AEDPA,

section 2255 provides in relevant part as follows:

“A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate court
of appeals to contain—

3
The COA authorized appeal only as to whether “the district court
erred in treating [Orozco-Ramirez’s] § 2255 motion as successive under
AEDPA.”
4
AEDPA contains two nearly identical provisions. Section 105(2)
amends 28 U.S.C. § 2255, which governs collateral attacks of federal
court convictions or sentences and is the provision at issue in this
appeal. Section 101 amends 28 U.S.C. § 2244, which relates to attacks
on state court convictions or sentences under 28 U.S.C. § 2254.
“Because of the similarity of the actions under sections 2254 and 2255,
they have traditionally been read in pari materia where the context does
not indicate that would be improper.” United States v. Flores, 135 F.3d
1000, 1002 n.7 (5th Cir. 1998), cert. denied, 119 S.Ct. 846 (1999).
Therefore, although the application of “second or successive” in section
2255 is in question in the case sub judice, we will refer to cases
involving section 2254 as relevant to our analysis. Similarly, we “do
not adhere to the linguistic ‘motion/petition’ distinction in referring
to the filing that a prisoner makes to begin proceedings under sections
2255 and 2254 (technically, a pleading filed under section 2255 is
referred to as a ‘motion,’ while one filed under section 2254 is a
‘petition’).” Id.

4
 (1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found
the movant guilty of the offense; or
(2) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.” 28
U.S.C. § 2255.

As amended by AEDPA, section 2244 reads in pertinent part as follows:

“(b)(1) A claim presented in a second or successive
habeas corpus application under section 2254 that was
presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas
corpus application under section 2254 that was not presented
in a prior application shall be dismissed unless—
(A) the applicant shows that the claim relies on
a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that
was previously unavailable; or
(B)(i) the factual predicate for the claim could
not have been discovered previously through the
exercise of due diligence; and
(ii) the facts underlying the claim, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing
evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant
guilty of the underlying offense.
(3)(A) Before a second or successive application
permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for
an order authorizing the district court to consider the
application.
(B) A motion in the court of appeals for an order
authorizing the district court to consider a second or
successive application shall be determined by a three-judge
panel of the court of appeals.
(C) The court of appeals may authorize the filing of a
second or successive application only if it determines that
the application makes a prima facie showing that the
application satisfies the requirements of this subsection.
(D) The court of appeals shall grant or deny the
authorization to file a second or successive application not
later than 30 days after the filing of the motion.
(E) The grant or denial of an authorization by a court

5
 of appeals to file a second or successive application shall
not be appealable and shall not be the subject of a petition
for rehearing or for a writ of certiorari.
(4) A district court shall dismiss any claim presented
in a second or successive application that the court of
appeals has authorized to be filed unless the applicant shows
that the claim satisfies the requirements of this section.”
28 U.S.C. § 2244(b).

Orozco-Ramirez does not seek certification of his 1997 section 2255

motion by this Court. Rather, he asserts that his 1997 motion is not

subject to AEDPA, and, even if it is, the motion is not “second or

successive.” We review de novo whether AEDPA applies to Orozco-

Ramirez’s current habeas motion and whether his motion is “second or

successive” under AEDPA. See Graham, 168 F.3d at 772.

A. Impermissible Retroactivity of AEDPA

Orozco-Ramirez first contends that the district court erred in

applying AEDPA’s more stringent standards to his motion. Orozco-Ramirez

argues that because his only prior habeas motion was filed before April

24, 1996 (AEDPA’s enactment date) it would be impermissible to apply

AEDPA’s restrictions on “second or successive” applications to his

present post-AEDPA motion. We disagree.

In Graham, we stated that Congress intended for AEDPA to govern

applications filed after April 24, 1996. See id. at 782. Several

circuits agree with our conclusion. See Trice v. Ward, 196 F.3d 1151,

1158 (10th Cir. 1999) (“We have repeatedly held that the ‘AEDPA applies

to cases filed after its effective date, regardless of when state court

proceedings occurred.’”) (quoting Moore v. Gibson, 195 F.3d 1152, 1162

6
(10th Cir. 1999)); Taylor v. Lee, 186 F.3d 557, 559-60 (4th Cir. 1999)

(“[A]ny federal petition for a writ of habeas corpus filed after the

signing of the AEDPA on April 24, 1996 is governed by the AEDPA.”),

cert. denied, 120 S.Ct. 1262 (2000); Mancuso v. Herbert, 166 F.3d 97,

101 (2d Cir.), cert. denied, 119 S.Ct. 2376 (1999) (“We conclude that

the AEDPA applies to a habeas petition filed after the AEDPA’s effective

date, regardless of when the petitioner filed his or her initial habeas

petition. . . . [T]his holding comports both with the statute’s plain

meaning and with congressional intent.”) (footnote omitted); Pratt v.

United States, 129 F.3d 54, 58 (1st Cir. 1997), cert. denied, 118 S.Ct.

1807 (1998) (applying AEDPA to Pratt’s second section 2255 motion filed

in 1997 after an initial habeas motion was filed in 1995).5 Orozco-

5
This view, however, is not universal. See United States v.
Roberson, 194 F.3d 408, 412 (3d Cir. 1999) (“Congress did not provide
unambiguous evidence of its intent to apply AEDPA’s chapter 153
amendments to cases in which a prisoner filed his first § 2255 or § 2254
motion prior to AEDPA’s effective date.”); United States v. Ortiz, 136
F.3d 161, 165 (D.C. Cir. 1998) (“Congress did not expressly indicate
whether the AEDPA amendments to the procedures and standards for filing
second § 2255 motions are to be applied in cases where the first § 2255
motion was filed before the enactment of AEDPA.”); In re Hanserd, 123
F.3d 922, 924 (6th Cir. 1997) (finding no clear congressional intent as
to whether AEDPA’s restrictions on multiple motions applied to Hanserd’s
second motion, when his first was filed pre-AEDPA). Nevertheless, even
if we were to conclude that Congress’s intent was not clear, we would
still find that AEDPA is not impermissibly retroactive as applied to
Orozco-Ramirez. As in Graham, we conclude that Orozco-Ramirez could not
show that he might have reasonably relied on pre-AEDPA law in filing his
previous habeas motion. See Graham, 168 F.3d at 786. Orozco-Ramirez
has not alleged detrimental reliance on pre-AEDPA law when he filed his
initial motion in 1995, and he cannot reasonably contend that he would
have acted differently had he known AEDPA later would bar his claims.
Even under pre-AEDPA law, a prisoner was required to present all the
claims he could assert in his first application. See McClesky v. Zant,
111 S.Ct. 1454, 1470-71 (1989) (holding that a prisoner seeking to bring

7
Ramirez filed his current 2255 motion on November 3, 1997. Therefore,

AEDPA applies.

B. “Second or Successive” under AEDPA

Orozco-Ramirez next contends that the district court erred in

finding his present motion “second or successive” under AEDPA.6

As the Supreme Court noted in Lindh, AEDPA is unclear in a number of

important respects, including what “constitutes a ‘second or successive’

application.” In re Cain, 137 F.3d 234, 235 (5th Cir. 1998) (per

curiam); see also Pratt, 129 F.3d at 60 (“AEDPA does not define the

a new claim in a second or successive motion must show either that the
motion was not an “abuse of the writ” or that he had made a “colorable
showing of factual innocence”). Because Orozco-Ramirez defied pre-AEDPA
law by not asserting discoverable claims in his first habeas motion, see
section B, infra, a retroactive application of AEDPA rendering his
present motion “second or successive” would not be impermissible.
6
Orozco-Ramirez does not contend that merely reentering the 1993
judgment of conviction and sentence to permit his out-of-time direct
appeal automatically resets the habeas motion counter to zero. This
argument is therefore abandoned. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993). If this argument were before us, we would
disagree. Amending the date of the 1993 judgment of conviction and
sentence following the 1995 habeas motion did not in any way alter
either the conviction or sentence. The district court merely performed
a wholly ministerial task permitting an out-of-time appeal, a standard
practice among federal courts. See, e.g., In re Goddard, 170 F.3d 435,
436 (4th Cir. 1999); United States v. Peak, 992 F.2d 39, 42 (4th Cir.
1993); United States v. Pearce, 992 F.2d 1021, 1023 (9th Cir. 1993);
Page v. United States, 884 F.2d 300, 302 (7th Cir. 1989); Slater v.
United States, 38 F. Supp.2d 587, 590 (M.D. Ten. 1999). Therefore, the
reentered judgment of conviction and sentence is not subject to
challenge in a second habeas motion without regard to earlier motions
relating to the original judgment of conviction and sentence. See
Pratt, 129 F.3d at 62.

8
mantra ‘second or successive.’”).7 Whether a habeas motion, filed after

an initial habeas motion that alleged only ineffective assistance of

counsel by failing to file notice of appeal as requested and resulted

only in an out-of-time appeal, is “second or successive” under AEDPA

presents a question of first impression in this Court. Those of our

sister circuits that have considered the issue have not reached a

uniform conclusion. Compare In re Goddard, 170 F.3d 435 (4th Cir.

1999), Shepeck v. United States, 150 F.3d 800 (7th Cir. 1998) (per

curiam), and United States v. Scott, 124 F.3d 1328 (10th Cir. 1997) (per

curiam) (all holding a second habeas motion, filed after an initial

motion upon which an out-of-time appeal was granted, was not “second or

successive” under AEDPA), with Pratt v. United States, 129 F.3d 54 (1st

Cir. 1997) (ruling that AEDPA barred Pratt’s second habeas motion as

“second or successive” where it was filed after an initial motion which

sought only an out-of-time appeal), cert. denied, 118 S.Ct. 1807

(1998).8 We now weigh in on this issue.

As noted above, AEDPA does not define “second or successive.” We

have, however, held that “a prisoner’s application is not second or

7
See Lindh, 117 S.Ct. at 2068 (“All we can say is that in a world
of silk purses and pigs’ ears, the Act is not a silk purse of the art
of statutory drafting.”).
8
See also In re Goddard, 170 F.3d 435, 438 (4th Cir. 1999)
(Wilkins, J., dissenting) (arguing that a section 2255 motion seeking
to obtain an out-of-time direct appeal counts as a first motion and
renders a later motion raising claims that could have been alleged in
the initial motion “second or successive”).

9
successive simply because it follows an earlier federal petition.” In

re Cain, 137 F.3d at 235. Rather, a subsequent motion is “second or

successive” when it: “1) raises a claim challenging the petitioner’s

conviction or sentence that was or could have been raised in an earlier

petition; or 2) otherwise constitutes an abuse of the writ.” Id. We

find these standards consistent with the Supreme Court’s views as

expressed in Stewart v. Martinez-Villareal, 118 S.Ct. 1618 (1998), and

Slack v. McDaniel, 120 S.Ct. ____, 2000 WL 478879 (US) (April 26, 2000).

In Stewart, the Court held that a motion is not “second or

successive” under AEDPA merely because it is numerically a second (or

subsequent) motion. See id. at 1621-22. Martinez-Villareal filed a

federal habeas petition, raising several claims including a Ford claim.9

See id. at 1620. The Ford claim was dismissed without prejudice as

premature, because an execution date had not yet been set. See id.

After his other grounds for habeas relief were adjudicated and denied,

Martinez-Villareal later refiled the Ford claim. See id. The Court

held the refiled motion was not “second or successive” under AEDPA,

because “[t]o hold otherwise would mean the dismissal of a first habeas

petition for technical procedural reasons would bar the prisoner from

ever obtaining federal habeas review.” Id. at 1622. The Court noted

that AEDPA’s “‘restrictions on successive petitions constitute a

9
See Ford v. Wainwright, 106 S.Ct. 2595, 2602 (1986) (holding
that “the Eighth Amendment prohibits the State from inflicting the
penalty of death upon a prisoner who is insane”).

10
modified res judicata rule, a restraint on what used to be called in

habeas corpus practice “abuse of the writ.”’” Id. (quoting Felker v.

Turpin, 116 S.Ct. 2333, 2340 (1996)). See also United States v.

Barrett, 178 F.3d 34, 44 (1st Cir. 1999), cert. denied, 120 S.Ct. 1208

(2000) (“The core of AEDPA restrictions on second or successive § 2255

petitions is related to the longstanding judicial and statutory

restrictions embodied in the form of res judicata known as the ‘abuse

of the writ’ doctrine.”). Because Martinez-Villareal’s Ford claim was

not ripe for disposition until his most recent motion was filed, the

Court ruled that the claim “would not be barred under any form of res

judicata” and, therefore, was not “second or successive” under AEDPA.

Id.10

In Slack, the petitioner, Slack, after his 1990 state conviction

had been affirmed on direct appeal, filed his first federal habeas in

1991 raising various claims including some not previously presented to

any state court. He filed a motion seeking to hold his federal petition

in abeyance while he returned to state court to exhaust those claims.

Thereafter, the district court dismissed the entire habeas petition

“without prejudice” for failure to exhaust state remedies. After an

unsuccessful round of state postconviction proceedings, Slack in May

10
The Court recognized three situations in which a claim would
not be “second or successive”: (1) a motion asserting a claim that was
previously dismissed because state remedies were not exhausted; (2) a
motion filed after a court dismissed the motion for technical reasons
such as failure to pay the required filing fee; and (3) a motion
claiming incompetency to be executed was unripe because an execution
date had not been set. See id.

11
1995 filed his second federal habeas, which included some claims Slack

had not raised in his 1991 federal habeas. The state filed a motion to

dismiss, in response to which the district court in March 1998 dismissed

with prejudice as an abuse of the writ all claims not included in the

1991 petition, and dismissed (presumably, without prejudice) the

remaining claims, which had been included in the 1991 petition, because

state remedies had not been exhausted as to one of them. The Supreme

Court ultimately held that the district court erred in dismissing as an

abuse of the writ so much of Slack’s second federal habeas as included

claims not raised in his first federal habeas.11 In so holding the Court

relied on Rose v. Lundy, 102 S.Ct. 1198 (1982), observing that “Rose v.

Lundy held that a federal district court must dismiss habeas corpus

petitions containing both exhausted and unexhausted claims. The

opinion, however, contemplated that the prisoner could return to federal

court after the requisite exhaustion.” Slack at *9 (emphasis added).

Slack also relied on the statement in Stewart that “‘[n]one of our cases

. . . have ever suggested that a prisoner whose habeas petition was

dismissed for failure to exhaust state remedies, and who then did

exhaust those remedies and returned to federal court, was by such action

filing a successive petition. A court where such a petition was filed

11
Although the Court applied pre-AEDPA law to resolve this issue
because “Slack commenced this habeas proceeding in the district court
in 1995, before AEDPA’s effective date,” it went on to state “we do not
suggest the definition of second or successive would be different under
AEDPA. See Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) (using
pre-AEDPA law to interpret AEDPA’s provision governing ‘second or
successive habeas applications’).” Slack at *9.

12
could adjudicate these claims under the same standard as would govern

those made in any other first petition.’” Slack at *9, quoting Stewart

at 1622. The Slack Court then stated its holding as follows: “A

petition filed after a mixed petition has been dismissed under Rose v.

Lundy before the district court adjudicated any claims is to be treated

as ‘any other first petition’ and is not a second or successive

petition.” Id. (emphasis added). Slack goes on to reiterate that “Rose

v. Lundy dictated that, whatever particular claims the [first] petition

contained, none could be considered by the federal court” and that “[no]

claim made in Slack’s 1991 petition was adjudicated during the three

months it was pending in federal court.” Id. at *10 (emphasis added).

Here, in contrast to Stewart and Slack, there is nothing about or

related to any of the claims raised in Orozco-Ramirez’s 1997 habeas,

except his claim respecting ineffective assistance of counsel on his

out-of-time appeal, which prevented Orozco-Ramirez from properly

alleging those claims in his 1995 habeas along with his claim that

counsel was ineffective for failing to give notice of appeal as

requested; nor did the presence in the 1995 habeas of a claim that

counsel was ineffective for failure to give notice of appeal in any way

dictate or require that the 1995 habeas, had it also contained the

claims later included in the 1997 habeas (other than that related to

ineffective assistance of counsel during the out-of-time appeal), be

dismissed without any merits determination merely because of the

presence therein of the former claim or any one or more of the latter

13
claims. Further, in contract to Slack, the 1995 habeas was adjudicated

on the merits as to the only claim alleged therein.

Orozco-Ramirez presents, in essence, two types of claims in his

1997 habeas: (1) ineffective assistance of trial counsel, and (2)

ineffective assistance of counsel during the out-of-time appeal. We

consider each claim independently in deciding whether it is “second or

successive” under AEDPA. The facts underlying Orozco-Ramirez’s claims

relating to his counsel’s performance at trial occurred before he filed

his initial habeas motion in 1995; he could have alleged those claims

in that 1995 motion, but failed to do so. Orozco-Ramirez does not argue

to the contrary; instead, he contends only that his initial 1995 motion

does not render the present 1997 motion “second or successive.”

Therefore, we conclude that Orozco-Ramirez’s claims of ineffective

assistance of counsel at trial were available to him and could have been

asserted by him in his initial habeas motion. See In re Cain, 137 F.3d

at 235. Accordingly, they are “second or successive” under AEDPA, and

the district court properly dismissed them.

We next turn to Orozco-Ramirez’s claim of ineffective assistance

of counsel during the out-of-time appeal. The facts underlying this

claim did not occur until after Orozco-Ramirez filed his initial habeas

motion and the district court granted the relief requested in the

motion. Therefore, his claim relating to his counsel’s performance

during his out-of-time appeal accrued after his initial habeas motion

was adjudicated and could not have been raised in that motion. See id.;

14
see also Shepeck, 150 F.3d at 801 (“[I]f Shepeck’s appellate lawyer

furnished ineffective assistance of counsel, that constitutional

violation occurred after the grant of his first petition under § 2255“

which sought only to permit an out-of-time appeal.); Scott, 124 F.3d at

1330 (“Mr. Scott’s ineffective assistance of appellate counsel claim did

not even exist until the direct appeal process concluded.”). We

conclude then that this claim is not “second or successive” under AEDPA,

because “[t]o hold otherwise . . . would bar the prisoner from ever

obtaining federal habeas review” on this ground. Stewart, 118 S.Ct. at

1622. Accordingly, we reverse the district court’s dismissal of Orozco-

Ramirez’s claim of ineffective assistance of counsel during the out-of-

time appeal and remand that claim for consideration on its merits.

As Orozco-Ramirez points out, and the government concedes, the

Fourth Circuit’s decision in In re Goddard, 170 F.3d 435 (4th Cir. 1999)

is almost directly on point with this case.12 The Fourth Circuit would

12
Goddard pleaded guilty to federal drug offenses, and no appeal
was initially taken. See id. at 436. More than two years later, on
March 18, 1996 (pre-AEDPA), Goddard filed a pro se section 2255 motion
alleging that, against his request, his attorney failed to appeal. See
id. No other claim was asserted in the motion. See id. The district
court granted Goddard’s motion and reentered judgment with the same
sentence as before. See id. Goddard timely appealed, and the Fourth
Circuit affirmed his conviction and sentence. See id. Then, on March
16, 1998 (post-AEDPA), Goddard filed another section 2255 motion,
alleging ineffective assistance of counsel during his sentencing, which
took place prior to the filing of his initial 2255 motion. See id. The
district court dismissed this motion as “second or successive” and
tendered without a court of appeals’s authorization, as set forth in
AEDPA. See id. Goddard appealed the dismissal, and the Fourth Circuit
reversed.

15
hold that none of Orozco-Ramirez’s claims are barred by AEDPA’s

restrictions on “second or successive” motions. See id. (“Because

Goddard used his first § 2255 motion solely to reinstate his right to

direct appeal, that motion does not count against him.”). We

respectfully disagree with that holding.

In reaching its conclusion that Goddard’s later motion was not

“second or successive” under AEDPA, the Fourth Circuit reasoned that

“[t]he only purpose of the reentered judgment, prompted by the first §

2255 motion, was to put [Goddard] back in the position he would have

been in had his lawyer filed a timely notice of appeal.” Id. at 437.

To deny him another 2255 motion would deprive him of “one full and fair

opportunity to wage a collateral attack” on his conviction and sentence.

Id.

Instead of applying res judicata principles as dictated by the

Supreme Court in Stewart, the Fourth Circuit in Goddard focused on what

it perceived to be the unfairness in requiring a prisoner in Goddard’s

(and Orozco-Ramirez’s) position to present all claims that could be

asserted in an initial habeas motion, including a claim that he has been

deprived of a direct appeal by ineffective assistance of counsel. The

First Circuit and Judge Wilkins’s dissent in Goddard contest the notion

that a prisoner suffers unfairness from a requirement that he present

all collateral claims in an initial 2255 motion. See In re Goddard, 170

F.3d 435, 441 (4th Cir. 1999) (Wilkins, J., dissenting) (“[A] § 2255

movant suffers no unfairness from a requirement that he pursue all of

16
his collateral issues in his first § 2255 motion, including a claim that

he has been deprived of a direct appeal by ineffective assistance of

counsel.”); Pratt, 129 F.3d at 61 (“We discern no unfairness in holding

Pratt to this regimen.”). As both opinions explain, a prisoner in

Orozco-Ramirez’s position is always properly motivated to present all

his collateral attacks in his initial motion, because when filing the

motion he cannot know whether or not his claim seeking an out-of-time

appeal will be successful. See id. If such a claim is not successful,

then a subsequent motion would be “second or successive”; and all

grounds for habeas relief that could have been asserted in the initial

motion would be dismissed in the subsequent motion.13 Under the

majority’s view in In re Goddard, whether a subsequent motion would be

“second or successive” would depend upon the success of the motion to

permit an out-of-time appeal. We find the First Circuit’s approach in

Pratt follows our precedent as set forth in In re Cain and the standards

set forth by the Supreme Court in Felker and Stewart.

“The requirement that all available claims be presented in
a prisoner’s first habeas petition is consistent not only
with the spirit of AEDPA’s restrictions on second and
successive habeas petitions, but also with the preexisting
abuse of the writ principle. The requirement serves the
singularly salutary purpose of forcing federal habeas
petitioners to think through all potential post-conviction

13
This would not necessarily be the end of the day for the
prisoner. Rather, in order to obtain consideration on the merits, the
prisoner would be required to obtain certification by the appropriate
court of appeals that the motion involves either newly discovered
evidence that is potentially clearly dispositive of his innocence or a
new rule of constitutional law that the Supreme Court had made
retroactive to cases on collateral review. See 28 U.S.C. § 2255.

17
 claims and to consolidate them for a unitary presentation to
the district court.” Id. (emphasis added). Pratt, 129 F.3d
at 61.14

Applying res judicata principles to this appeal, we hold that Orozco-

Ramirez’s claims regarding his trial counsel were available to him when

he filed his initial habeas motion and are, therefore, “second or

successive” under AEDPA.15 His claim of ineffective assistance of

counsel during the out-of-time appeal, however, could not have been

raised in the prior proceeding and, thus, is not “second or successive.”

Conclusion

We reverse the dismissal of Orozco-Ramirez’s claim for collateral

relief based on alleged ineffective assistance of counsel during the

out-of-time appeal and remand that claim for consideration on its

merits. We affirm the dismissal of all other claims raised by Orozco-

14
In his second 2255 motion, Pratt sought to set aside his
conviction on the basis of ineffective assistance of counsel during his
trial. See id. at 56. Unlike Orozco-Ramirez, Pratt did not allege that
his appellate counsel was constitutionally deficient during his out-of-
time appeal. The First Circuit, therefore, affirmed the district
court’s dismissal of all of Pratt’s claims.
15
Had Orozco-Ramirez included these claims in his initial habeas
motion, the district court, had it determined to rule on one or more of
them and found merit therein, could have granted Orozco-Ramirez a new
trial, pretermitting his claim based on counsel’s failure to file a
notice of appeal, or the district court could have held them in abeyance
or dismissed them without prejudice, pending the outcome of his
reinstated direct appeal. See Brewer v. Johnson, 139 F.3d 491, 493 (5th
Cir. 1998); Mack v. Smith, 659 F.2d 23, 26 (5th Cir. Unit A 1981). In
the latter event, after his direct appeal, Orozco-Ramirez then could
have presented the previously raised, but unadjudicated, claims, along
with his claim of ineffective assistance of counsel during the out-of-
time appeal, to the district court for consideration on the merits.

18
Ramirez. AFFIRMED in part; REVERSED and REMANDED in part.

19