United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 8, 1999 Decided November 26, 1999
No. 98-3145
In re: Robert Moore
Petitioner
Petition for Authorization to File a Second or Successive
Motion under 28 U.S.C. s 2255 in the
United States District Court
for the District of Columbia
(No. 92cr00202)
A. J. Kramer, Federal Public Defender, appointed by the
court, argued the cause and filed the briefs as amicus curiae
for petitioner.
Robert Moore, appearing pro se, was on the briefs for
petitioner.
John R. Fisher, Assistant U.S. Attorney, argued the cause
for respondent. With him on the brief were Wilma A. Lewis,
U.S. Attorney, and Thomas S. Rees, Assistant U.S. Attorney.
Before: Ginsburg, Rogers, and Tatel, Circuit Judges.
Opinion for the court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Robert Moore, a federal prisoner,
asks this court to certify to the district court a "second or
successive" habeas corpus petition under 28 U.S.C. s 2255.
Because we conclude that Moore has not yet filed a first
petition, however, he does not need such an order from this
court; he may file a s 2255 petition directly with the sentenc-
ing court. Accordingly, we dismiss Moore's request for certi-
fication.
I. Background
In February 1993 Robert Moore pleaded guilty to posses-
sion with intent to distribute five grams or more of cocaine
base in violation of 21 U.S.C. ss 841(a)(1) & (b)(1)(B)(iii).
The presentence report recommended that he be sentenced
as a career offender, see U.S.S.G. ss 4B1.1 & 4B1.2, based
upon two convictions dating from 1984: attempted robbery in
Washington, D.C., and housebreaking in Prince George's
County, Maryland. In accordance with the recommendation
in the presentence report, the district court increased
Moore's criminal history category to level VI from level V.
This increased the applicable sentencing range for his offense
to between 188 and 235 months from a range of between 168
and 210 months. The district court sentenced Moore in April
1993 to serve the minimum 188 months in prison.
In May 1993 Moore's counsel filed with the district court a
pleading styled "Motion to Reconsider Sentence." In it he
argued that under United States v. Spencer, 817 F. Supp. 176
(D.D.C. 1993), remanded for resentencing, 25 F.3d 1105 (D.C.
Cir. 1994), which had been issued shortly after Moore was
convicted, sentencing Moore as a career offender violated the
Fifth and Eighth Amendments to the Constitution of the
United States. The Government opposed the Motion to
Reconsider on its merits, arguing both that the district court
properly applied the career offender guidelines to Moore and
that Spencer was improperly decided. The district court
summarily denied the Motion to Reconsider "without preju-
dice,"* and Moore did not appeal.
In December 1994 Moore, acting pro se, filed a motion
under 28 U.S.C. s 2255 asking the district court to vacate his
sentence for the federal drug conviction. Moore argued that
his counsel had been ineffective in that he had failed to
challenge the applicability of the career offender guidelines.
Specifically, Moore contended that the court had erred in
treating his conviction for attempted robbery as a predicate
for sentencing him as a career offender because he had been
under the influence of illegal narcotics when he pleaded guilty
to that charge. The district court denied this motion in an
order stating that "the defendant has previously submitted a
motion to vacate, set aside or modify sentence, and ... the
Court 'is not required to entertain a second or successive
motion for similar relief on behalf of the same prisoner.' "
Though the district court thus concluded that the 1994 motion
was Moore's second under s 2255, the court did not specifi-
cally refer to the 1993 Motion to Reconsider or provide any
other basis for its conclusion that Moore had previously filed
a s 2255 motion.
After pursuing a collateral attack upon his attempted rob-
bery conviction in D.C. Superior Court, Moore asked this
court to certify to the district court a second or successive
petition under s 2255. He again argues that his counsel in
the federal drug case was constitutionally ineffective for
failing to contest the applicability of the career offender
guidelines, but he offers two new legal bases upon which he
says his counsel should have challenged the enhancement:
First, the D.C. conviction can not properly serve as a predi-
cate offense under the career offender guidelines because
attempted robbery is an inchoate crime. See United States v.
Seals, 130 F.3d 451 (D.C. Cir. 1997); United States v. Price,
990 F.2d 1367 (D.C. Cir. 1993). Second, even if attempted
__________
* The district court's order reads in full, "Upon consideration of
the 'Motion to Reconsider Sentence' of Robert Moore, and the
opposition thereto, it is this 21st day of May, 1993 ORDERED, that
the motion is denied without prejudice."
robbery can be a predicate offense, it does not necessarily
involve violence; and it can not serve as a predicate offense
unless the Government proves that the defendant's attempted
robbery did involve violence. See United States v. Hill, 131
F.3d 1056 (D.C. Cir. 1997); United States v. Mathis, 963 F.2d
399 (D.C. Cir. 1992).
II. Analysis
A federal prisoner seeking relief from his sentence must
file a petition, subject to limitations not relevant here, in "the
court which sentenced him." 28 U.S.C. s 2255. Under the
Antiterrorism and Effective Death Penalty Act of 1996,
Pub.L. No. 104-32, 110 Stat. 1214 (AEDPA), however, a
federal prisoner may not file a "second or successive" such
petition unless he first obtains an order from the appropriate
court of appeals authorizing the district court to consider the
petition. Specifically, s 2255 mandates that a "second or
successive motion must be certified as provided in section
2244," which in turn provides:
(b)(3)(A) Before a second or successive application ... 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.
* * *
(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.
If the petition Moore wants to file with the district court is
not "a second or successive motion," then the court of appeals
has no role to play at this point in the process; he may and
he must seek relief directly from the sentencing court. The
Government, however, maintains that Moore has previously
filed at least one s 2255 motion--his 1993 Motion to Recon-
sider--and therefore does need an order from this court
certifying his petition to the district court.
The Government's position is wholly without merit. The
Supreme Court has clearly held that when a motion is
dismissed "for technical procedural reasons" and "the habeas
petitioner does not receive an adjudication of his claim," a
subsequent petition is not "a second or successive motion"
under the AEDPA. Stewart v. Martinez-Villareal, 523 U.S.
637, 645 (1998). Here the district court denied the Motion to
Reconsider "without prejudice." Though the court did not
explain its disposition, there is no indication that the court
denied the petition on the merits.
The Government argues nonetheless that although the
district court denied the Motion to Reconsider "without preju-
dice" it actually ruled upon the merits of the motion. In
support of this position, the Government makes three points
none of which need detain us long. First, the district court
order recites that before denying the motion the court consid-
ered the Government's "opposition thereto"--in which it con-
tested the motion on its merits. The district court's mere
mention of all the pleadings before it cannot bear the weight
the Government seeks to place upon it; that boilerplate
recitation would be the same regardless whether the court
were resolving the motion on the merits or on a procedural
defect. Second, the same judge who entered the order
denying the 1993 motion later denied the 1994 motion as
"second or successive." The Government urges us to infer
therefrom that the court intended the 1993 order to deny the
Motion to Reconsider on its merits, although there is no
indication of that in the order itself, and it would then have
been a mistake to specify that the order was "without preju-
dice." The district court might just as well have erred in
1994 as in 1993, either by misreading its earlier order or in
thinking that Moore had previously filed a s 2255 motion in
addition to the Motion to Reconsider. Furthermore, if the
Government were correct on this point, then the district
court's denial "without prejudice" would have become, without
notice and after the time for direct appeal had passed, a
denial "with prejudice." We cannot countenance an argu-
ment that entails so much potential for unfair surprise.
Finally, the Government points to cases in which courts
have understood a disposition to be on the merits though the
order indicated it was "without prejudice." The only case
potentially helpful to the Government is Dorsey v. United
States, 372 F.2d 928 (D.C. Cir. 1967). The defendant there
was convicted of possessing heroin. At the pre-trial suppres-
sion hearing he sought to explore the sequence of events
surrounding the arresting officers' approaching him and seiz-
ing the drugs, but one of the officers was unavailable for
questioning at the time. The court denied the motion to
suppress without prejudice. In his post-conviction appeal the
defendant argued that his counsel should have been given
another opportunity to inquire into the circumstances sur-
rounding the officers' initial approach in part because the
judge's denial of his motion to suppress without prejudice
showed that the judge "contemplated additional proceedings."
Id. at 931 n.4. After holding that the search was valid
regardless of the circumstances surrounding the officers'
initial approach, we wrote:
[A]lthough the use of the phrase "without prejudice" in
this context seems to us undesirably ambiguous in view
of the purposes of Rule 41(e), Fed.R.Crim.P., there is
nothing about its use in this case to suggest that the
hearing judge did not intend to deny the motion to
suppress on its merits.
Id.
Dorsey does not govern this case. One purpose of a
suppression hearing held pursuant to Fed.R.Crim.P. 41(e) is
to determine whether evidence will be admissible at the
upcoming trial. The sentencing court in this case faced no
analogous time pressure, nor does the Government suggest
any other reason sensibly to think the district court intended
to resolve finally what it purported to resolve without preju-
dice to a later petition. We therefore conclude that the order
denying the 1993 Motion to Reconsider was not a first
adjudication of Moore's s 2255 claim.
We turn next to the question whether Moore's claim was
adjudicated when the court denied his 1994 motion; if so,
then the present petition is his second and we must decide
whether to certify it to the district court. Recall that the
district court dismissed the 1994 motion as successive.
Whether in doing so the district court considered the 1993
motion to be Moore's first s 2255 petition, or mistakenly
thought Moore had at some other point filed a s 2255 motion
is unclear from the record. In either event, it is clear that
the district court dismissed the 1994 motion for a procedural
reason and did not resolve it on the merits. The 1994 motion,
therefore, does not present a barrier to Moore's now filing a
motion under s 2255. See Stewart, 523 U.S. at 645.
III. Conclusion
For the foregoing reasons we have no occasion either to
grant or to deny Moore authorization to proceed in district
court as provided in s 2244. Because Moore's claim has not
been resolved before, he may proceed under s 2255 in the
district court as of right. Accordingly, Moore's request for
certification is
Dismissed.