United States v. Saro, Carlos

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 19, 2001 Decided June 12, 2001

No. 00-3005

United States of America,
Appellee

v.

Carlos Saro, a/k/a Cristobal,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 90cr00449-03)

A. J. Kramer, Federal Public Defender, appointed by the
court, argued the cause and filed the briefs as amicus curiae
on the side of appellant.

Carlos Saro, appearing pro se, was on the briefs for
appellant.

 Matthew E. Sloan, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.
Lewis, U.S. Attorney at the time the brief was filed, and John
R. Fisher, Roy W. McLeese, III, Robert D. Okun and John P.
Dominguez, Assistant U.S. Attorneys. Mary-Patrice Brown,
Assistant U.S. Attorney, entered an appearance.

Before: Edwards, Chief Judge, Rogers and Garland,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Carlos Saro seeks relief from the
district court's denial of his motion for leave to file a motion
to vacate his sentence. Although the procedural complexities
of this case require some discussion, we conclude that the
district court was plainly correct in ruling that Saro's motion
was time-barred. We therefore cannot grant Saro's request
for relief.

I

In May 1991, Saro was convicted in the United States
District Court for the District of Columbia on five counts of
distribution of and conspiracy to distribute cocaine base, and
was sentenced to life imprisonment. In 1994, we denied his
appeal and affirmed his convictions and sentence. United
States v. Saro, 24 F.3d 283 (D.C. Cir. 1994). Saro did not
seek certiorari from the Supreme Court.

Pursuant to 28 U.S.C. s 2255, a federal prisoner may move
the sentencing court to vacate, set aside or correct his
sentence "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 sen-
tence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral at-
tack." Effective April 24, 1996, the Antiterrorism and Effec-
tive Death Penalty Act (AEDPA) amended s 2255 to impose
a "1-year period of limitation" on motions brought under that
section. Pub. L. No. 104-132, s 105, 110 Stat. 1214, 1220
(1996). In United States v. Cicero, we held that prisoners
like Saro, whose convictions became final before AEDPA's

effective date, had a one-year grace period from that date in
which to file a s 2255 motion--yielding a filing deadline of
April 24, 1997. See 214 F.3d 199, 202 (D.C. Cir. 2000).

On August 27, 1997--four months after that deadline--Saro
mailed a pro se pleading to the district court entitled "Motion
for Leave to File a Title 28 U.S.C. s 2255." He did not
attach a substantive s 2255 motion to this pleading, nor did
he give any indication of the nature of his underlying claims.
Instead, Saro sought an extension of time in which to file a
s 2255 motion, based on the defalcation of his attorney. Saro
stated that in late 1996 or early 1997, he contacted attorney
Patrick L. Brown about filing a motion on his behalf. Ac-
cording to Saro's pleadings and attached correspondence,
Brown told him that the deadline for filing the motion was
April 24, 1997, and that Brown would not start working on
the motion until Saro paid him a retainer. Brown wrote Saro
on March 24, 1997, saying that he had not yet received the
agreed-upon fee and advising Saro to send it quickly in light
of the impending deadline. Saro mailed Brown a payment on
March 28, 1997. Saro never heard from Brown again, and by
May 30, 1997, Saro confirmed through correspondence with
the clerk of the district court that Brown had not filed the
s 2255 motion. On July 31, 1997, Saro filed a complaint with
the Disciplinary Counsel of the Supreme Court of Ohio, the
bar of which Brown was a member. See Mot. for Leave to
File at 1-2, Ex. 2.1

On April 30, 1998, the district court denied Saro's motion
for leave to file on the ground that it was "time-barred
because it was filed significantly more than a year after the
enactment of the AEDPA." United States v. Saro, No.
90-cr-449, slip op. at 2 (D.D.C. Apr. 30, 1998) ("April 1998
Order"). In response to Saro's argument that the limitations
period should be tolled because of his lawyer's malfeasance,
the court concluded that there were "no 'extraordinary cir-
cumstances' ... which would justify equitable tolling." Id.
The court explained that although Saro had learned of
Brown's failure to file by May 30, 1997, he did not submit his

__________
1 Saro subsequently advised the district court that Brown had
been disbarred by the Ohio Supreme Court.

motion for leave to file until three months later. Moreover,
Saro offered "no explanation for this three-month delay." Id.

Saro responded to the court's order with a series of mo-
tions seeking reconsideration, all of which the court denied.
Saro subsequently asked the district court to issue a Certifi-
cate of Appealability (COA), required by 28 U.S.C. s 2253(c)
to appeal "the final order in a proceeding under section 2255."
The district court denied this request as well. Saro filed
notices of appeal from one of the district court's denials of
reconsideration and from its denial of a COA.2 We consoli-
dated the notices of appeal and appointed the Federal Public
Defender as amicus curiae to present arguments on Saro's
behalf.3

II

As amended by AEDPA in 1996, 28 U.S.C. s 2253 states:
"Unless a circuit justice or judge issues a certificate of

__________
2 Although there might otherwise be questions concerning the
timeliness of these notices of appeal, the United States agrees that
both were timely filed, as was the application to the district court
for a COA, because none of the orders entered by the district court
complied with the "separate document" requirement of Federal
Rule of Civil Procedure 58. See Fed. R. Civ. P. 58 (providing that
"[e]very judgment shall be set forth on a separate document," and
that a "judgment is effective only when so set forth"); United
States v. Feuver, 236 F.3d 725, 727-28 & n.4 (D.C. Cir. 2001) (noting
government's concession that Rule 58 applies to s 2255 proceed-
ings); Kidd v. District of Columbia, 206 F.3d 35, 39-40 (D.C. Cir.
2000) (discussing standard for satisfying requirements of Rule 58).
While the time limit for filing a notice of appeal does not begin to
run until the district court files a judgment that conforms with Rule
58, this court has jurisdiction to decide an appeal filed before entry
of a conforming judgment. See Pack v. Burns Int'l Sec. Serv., 130
F.3d 1071, 1072-73 (D.C. Cir. 1997).

3 Both parties agree that resolution of the issues raised by the
notice of appeal from the district court's denial of a COA will
resolve this case in its entirety. Hence, we need not delve into the
procedural problems surrounding Saro's appeal from the court's
earlier denial of reconsideration.

appealability, an appeal may not be taken to the court of
appeals from ... the final order in a proceeding under section
2255." 28 U.S.C. s 2253(c)(1); see Pub. L. No. 104-132,
s 102, 110 Stat. 1214, 1217 (1996). When a COA is required,
we treat a notice of appeal as an application for a COA. See
United States v. Mitchell, 216 F.3d 1126, 1130 (D.C. Cir.
2000); see also Fed. R. App. P. 22(b); Slack v. McDaniel, 529
U.S. 473, 483 (2000). Although Saro applied for a COA in the
district court, he now contends that no COA is required to
hear his appeal because the district court's April 1998 deci-
sion was not "the final order in a proceeding under section
2255," but rather was merely the denial of leave to file a
s 2255 motion. The United States contends that a COA is
required because that decision was in fact the final order in a
s 2255 proceeding.

If a COA is required, it is a prerequisite to our consider-
ation of Saro's appeal. See 28 U.S.C. s 2253(c); Slack, 529
U.S. at 485. Thus, we may not simply assume that a COA is
not required and proceed to the merits of Saro's claim. Cf.
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-94
(1998) (holding that federal courts must determine that they
have jurisdiction before turning to the merits of a case). We
may, however, assume that a COA is required, and then
proceed to consider whether Saro can satisfy the require-
ments for issuance of a COA. Cf. Slack, 529 U.S. at 485
(holding that "[e]ach component of the s 2253(c) showing is
part of a threshold inquiry"); Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 584-85 (1999) (holding that jurisdictional
questions may be resolved in any order). Whether such an
approach is fair to Saro if in fact no COA is required for his
appeal is, of course, another question--which we address in
Part III below.

Under s 2253, a COA may issue "only if the applicant has
made a substantial showing of the denial of a constitutional
right." 28 U.S.C. s 2253(c)(2). In Slack v. McDaniel, the
Supreme Court held that when a "district court denies a
habeas petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a COA should issue
... if the prisoner shows, at least, [1] that jurists of reason

would find it debatable whether the petition states a valid
claim of the denial of a constitutional right, and [2] that
jurists of reason would find it debatable whether the district
court was correct in its procedural ruling." 529 U.S. at 478.
The Slack test applies to Saro's case, because the district
court denied Saro's motion solely on the procedural ground
that it was barred by the statutory deadline.

The government contends that Saro cannot meet the first
requirement of the Slack test--a debatable claim of the denial
of a constitutional right--because Saro has never described
the nature of his underlying constitutional claim. In re-
sponse, Saro contends that the requirement of a debatable
constitutional claim cannot be applied literally in a case like
his, where the underlying s 2255 motion was never filed
because the district court denied leave to file. We need not
resolve this dispute regarding Slack's first requirement, how-
ever, because it is quite clear that Saro cannot meet Slack's
second requirement: that jurists of reason would find it
debatable whether the district court was correct in its proce-
dural ruling.4

The government asks us to hold that reasonable jurists
would not dispute the correctness of the district court's ruling
that Saro's motion was time-barred, both because equitable
tolling never applies to proceedings under s 2255, and be-
cause even if the doctrine does apply, malfeasance by a
prisoner's attorney does not constitute the "extraordinary
circumstances" necessary to bring the doctrine into play. See
Cicero, 214 F.3d at 203 (holding that if equitable tolling
applies to s 2255, tolling is warranted only "if extrordinary
circumstances beyond a prisoner's control" prevented him

__________
4 In Slack, the Supreme Court advised courts of appeals that:
"Each component of the s 2253(c) showing is part of a threshold
inquiry, and a court may find that it can dispose of the application
in a fair and prompt manner if it proceeds first to resolve the issue
whose answer is more apparent.... The recognition that the
'Court will not pass upon a constitutional question ... if there is
also present some other ground upon which the case may be
disposed of,' ... allows and encourages the court to first resolve
procedural issues." 529 U.S. at 485 (quoting Ashwander v. TVA,
297 U.S. 288, 347 (1936) (Brandeis, J., concurring)).

from filing by the statutory deadline).5 We need not reach
either such conclusion to resolve this case. Even if s 2255's
period of limitations is subject to equitable tolling, and even if
the malfeasance of Saro's lawyer qualifies for tolling, the
amount of time tolled would not excuse Saro's three-month
delay after he learned of his lawyer's failure to file.

The Supreme Court has explained that "[p]rinciples of
equitable tolling usually dictate that when a time bar has
been suspended and then begins to run again upon a later
event, the time remaining on the clock is calculated by
subtracting from the full limitations period whatever time ran
before the clock was stopped." United States v. Ibarra, 502
U.S. 1, 4 n.2 (1991). Saro's pleadings indicate that he did not
engage Brown to file the s 2255 motion until, at the earliest,
March 28, 1997--the date he sent the payment that Brown
told him was necessary for work to begin. Accordingly, even
if Brown's defalcation is the kind of "extraordinary circum-
stance" that warrants tolling, the earliest date upon which
tolling could begin was March 28--at which point Saro had
approximately one month remaining before the April 24, 1997
filing deadline. Saro's pleadings also make clear that he
knew Brown had failed to file the s 2255 motion no later than
May 30, 1997, when Saro received confirmation from the
district court clerk that no filing had been made. Thus, May
30 was the latest date upon which the time bar would begin to
run again, at which point principles of equitable tolling would
leave Saro with another month--until the end of June--to
make his s 2255 filing with the district court.6 Saro, howev-
er, did not file within a month of learning of his lawyer's

__________
5 Cicero found it unnecessary to decide whether equitable tolling
applies to s 2255 proceedings because the circumstances cited by
the prisoner did not qualify as "extraordinary." 214 F.3d at 203.

6 See Ibarra, 502 U.S. at 4 n.2 ("[F]or example, a motion to
reconsider filed after 20 days, if it tolled the 30-day period to
appeal, would leave at most only 10 days to appeal once the
reconsideration motion was decided."). The new deadline may be

malfeasance. Instead, he waited three months--until the end
of August 1997--missing even an equitably extended deadline
by two months.

Saro contends that this should not be the end of our
inquiry, and that we should extend the limitations period
through the date of his August filing, or at least remand for a
hearing into the circumstances of this additional delay. Had
Saro offered an explanation for the additional delay, he might
have an argument in this regard. But it is Saro's burden to
establish that equitable tolling is warranted,7 and he has
offered no explanation for his failure to file even a request for
an extension of time during the three months from May
through August: not in his multiple pleadings in the district
court, and not in any subsequent pleading on appeal.8 As
noted above, this circuit held in Cicero that if equitable tolling
applies at all under s 2255, it applies only in "extraordinary
circumstances." 214 F.3d at 203. Moreover, the Cicero court
rejected as insufficiently extraordinary the fact that a prison-
er's preparations for filing during the final months of the
AEDPA grace period were interrupted when he was stabbed
and hospitalized, and when his legal papers became unavail-
able because he was transferred to a different prison. Id. at

__________
calculated in an equivalent way by tacking the length of the tolled
period--that is, the period from March 28 to May 30--onto the
original limitations deadline of April 24, 1997.

7 See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000)
(noting that "the party seeking to establish tolling typically carries
that burden," and applying that rule to equitable tolling under
AEDPA); Bayer v. United States Dep't of Treasury, 956 F.2d 330,
333 (D.C. Cir. 1992) (holding that a Title VII plaintiff bears the
burden of establishing his entitlement to equitable tolling).

8 Saro has offered no explanation notwithstanding that the district
court repeatedly stated that it could not grant relief because Saro
had failed to explain the three-month delay. See United States v.
Saro, No. 90-cr-449, slip op. at 4 n.2 (D.D.C. July 23, 1999); United
States v. Saro, No. 90-cr-449, slip op. at 3 (D.D.C. June 25, 1998);
United States v. Saro, No. 90-cr-449, slip op. at 2 (D.D.C. Apr. 30,
1998).

201. It must follow that when a prisoner proffers no reason
whatsoever for his failure to file by an already-extended
deadline, additional equitable tolling is plainly unwarranted
and the district court need conduct no further factfinding on
the subject. See generally id. at 204 (declining to remand to
the district court for additional factfinding).

In sum, we conclude that the district court was plainly
correct in holding that there were "no 'extraordinary circum-
stances' ... which would justify equitable tolling" sufficient to
render Saro's filing timely in this case. April 1998 Order at
2.9 Moreover, this result is so clear, particularly in light of
the absence of any explanation for Saro's failure to file for
three months after learning of his lawyer's failure to file, that
"jurists of reason" would not "find it debatable whether the
district court was correct in its procedural ruling." Slack,
529 U.S. at 478. Accordingly, Saro is ineligible for a COA.
See id.

III

To this point, our analysis has proceeded upon the assump-
tion that Saro requires a COA in order to appeal the district

__________
9 We have examined whether the court was "correct," rather than
whether it "abused its discretion," because we employ de novo
review when a district court holds--as the court appears to have
done here--that the facts cannot justify equitable tolling as a
matter of law. See Smith-Haynie v. Dist. of Columbia, 155 F.3d
575, 578 n.4 (D.C. Cir. 1998) (noting that "the doctrine of equitable
tolling ordinarily involves discretion on the trial judge's part," but
employing de novo review because the district court found as a
matter of law that the facts "could not support invocation of the
equitable tolling doctrine"); see also Dunlap v. United States, No.
99-6456, 2001 WL 473063, at *5 & n.2 (6th Cir. May 7, 2001)
(reviewing a district court's s 2255 equitable tolling decision de
novo, where the district court declined to grant tolling as a matter
of law).

court's denial of his motion for leave to file a s 2255 motion.
Saro objects that such an assumption is unfair to him, arguing
that a COA is only required to appeal from the denial of a
s 2255 motion, and not from the denial of a motion to file
such a motion. Saro's objection to our analytical approach
would rest on firm ground, and hence require a resolution of
whether a COA is actually required in this case, if the
standard for reviewing a COA application were less favorable
to him than the standard for reviewing an appeal.10 But the
COA standard is not less favorable, and Saro's objection is
therefore misplaced.

Our conclusion that Saro does not qualify for a COA turned
on the correctness of the district court's ruling that Saro's
out-of-time filing could not be saved by the doctrine of
equitable tolling. But just as that procedural ruling was the
central issue in our COA analysis, so too would it be were the
case analyzed as an appeal. Moreover, the standard for
reviewing the correctness of that ruling on an application for
a COA is more favorable to Saro than is the standard for
reviewing the merits of an appeal. To qualify for a COA:
"[T]he petitioner need not show that he should prevail on the
merits.... Rather, he must demonstrate that the issues are
debatable among jurists of reason; that a court could resolve
the issues [in a different manner]; or that the questions are
adequate to deserve encouragement to proceed further."
Mitchell, 216 F.3d at 1130 (alterations and emphasis in origi-
nal) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
As we have held in Part II, Saro cannot meet even this liberal
standard. Accordingly, he necessarily would fail on the mer-
its were we to treat his notice as an appeal rather than as an
application for a COA.

__________
10 For example, had Saro's COA application foundered upon the
first of Slack's requirements--that he have a debatably valid claim
of the denial of a constitutional right--he would have reason to
complain, because such a requirement would not typically apply on
appeal from a district court's denial of a motion to file out of time.

 IV

For the foregoing reasons, Saro's appeal, treated as an
application for a COA, is

Dismissed.