Amicus Curiae Brief — Castro v. United States
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Suprome Court, U.S.
7 ) FILED
No. 02-6683
WAR 79 200)
CLERK
In The
Supreme Court of the United States
¢
HERNAN O’RYAN CASTRO,
Petitioner,
V.
UNITED STATES,
Respondent.
+
On Writ Of Certiorari
To The United States Court Of Appeals
For The Eleventh Circuit
+
BRIEF OF NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS AS AMICUS
CURIAE IN SUPPORT OF PETITIONER
¢
LISA B. KEMLER PAUL MOGIN
NATIONAL ASSOCIATION OF Counsel of Record
CRIMINAL DEFENSE WILLIAMS & CONNOLLY LLP
LAWYERS 725 Twelfth Street, N.W.
108 North Alfred Street Washington, DC 20005
Alexandria, VA 22314 (202) 434-5000
(703) 684-8000
Attorneys for Amicus-Curiae
National Association of
Criminal Defense Lawyers
——
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
to
lication shall
successive app
i
lI
f
applying to the court of appeals for authorization to file a
successive motion — appeals the dismissal on the ground
that his motion is not successive, and the court of appeals
then affirms the dismissal, is a petition for certiorari
barred by 28 U.S.C. § 2244(b)(3)E), which provides that a
not be the subject of a petition for certiorari?
2. When a federal prisoner requests relief for
first time under 28 U.S.C. § 2255, is his motion
dismissal as a second or successive motion under § 2255
because the court, over the prisoner’s objection and without
notice, previously treated a pro se motion properly brought
by the prisoner under another rule or statute as also
requesting relief under § 2255?
denial of authorization to file a
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTE D................0scccsscesscossceeseees i
TAREE CF Ray CER EIE SEED crcccccssccconicccsnesedsenenennnnions iv
INTEREST OF AMICUS CURIAE ............:ccccccceseeees 1
STATUTORY PROVISIONS AND RULE IN-
VRE TEED ccccescecceseseseosennsesenanpiscnssnnedenseneenananaananae 1
TT IIIS 0 ovccevccccscsncccesscosibaconesonnmennemeiassiaaanaan 4
A. Proceedings on the Motion Brought by Petitioner
CREE FOO BD ..ccccccccccscnscnsssssenscssesiuanndeianaamn 4
B. Proceedings on the Motion Brought by Petitioner
Creer © GD ccvccoccccsescncnsecsssenensnneiansinnaae 6
SUMMARY OF ARGUMENT..................:cscccseeeeeeeeees 9
DTUTRIIINE, ccccceccesessoscossentstotaseesonesidaensaae 11
I. THIS COURT HAS JURISDICTION TO RE-
VIEW THE ELEVENTH CIRCUITS RULING
THAT PETITIONER'S 1997 MOTION IS A
SUCCESSIVE MOTION UNDER § 2255....... 11
II. THE RECHARACTERIZATION OF PETI-
TIONER’S RULE 33 MOTION AS A § 2255
MOTION DOES NOT JUSTIFY DISMISSAL
OF HIS FIRST REQUEST FOR RELIEF
UNDER § 2255 AS SUCCESSIVE ................. 14
A. In 1994 Petitioner Requested No Relief
Cree? © BBG ..ccccscosscossccsnsesenssssinenmainnanaian 15
B. It Was Completely Proper for Petitioner
To Bring His 1994 Motion Solely Under
BRUREO BB 00cccccscccccsscccscsssbeccscsnnenmueaannan 16
iii
TABLE OF CONTENTS - Continued
Page
C. Petitioner Was Not Afforded Notice of
the District Court’s Proposed Recharac-
terization or an Opportunity To With-
ES 20
EE 26
iv
TABLE OF AUTHORITIES
Page
CASES
Adams v. United States, 155 F.3d 582 (2d Cir.
ES ee Se Pee awe ole 11, 21, 22
Brady v. Maryland, 373 U.S. 83 (1963)............... 4, 5, 10,17
Caldwell v. United States, 205 F.2d 879 (D.C. Cir.
Rr See ee ne ne ee Ne ae SN 18
Coplon v. United States, 191 F.2d 749 (D.C. Cir.
EE eR ie oe ee Ree ee ee 18
Duncan v. Walker, 533 U.S. 167 (2001) ...............ccccccecee eee 15
Felker v. Turpin, 518 U.S. 651 (1996).................c0ee aseeees 12
Ford v. Wainwright, 477 U.S. 399 (1986) ..................000000 13
Giglio v. United States, 405 U.S. 150 (1972)........... 5, 10,17
Government of VI. v. Joseph, 685 F.2d 857 (3d Cir.
ER AT AS CESS and e erat uy arene 18
Heflin v. United States, 358 U.S. 415 (1959)..................... 16
Henderson v. United States, 264 F.3d 709 (7th Cir.
REE Re eee ee eC Ne 11, 19, 22
Holmes v. United States, 284 F.2d 716 (4th Cir.
tiene aici hla i calcd eat 18
Morales v. United States, 304 F.3d 764 (8th Cir.
RTE ENTER eS eae ee alate atelier 10, 22
Raineri v. United States, 233 F.3d 96 (1st Cir.
TR IRR IE NS Care eee a No 11, 15, 16, 21, 22
Richardson v. United States, 360 F.2d 366 (5th Cir.
SE aa ne Fee te wees Sate ee eT 18
In re Shelton, 295 F.3d 620 (6th Cir. 2002).................. 11, 22
Slack v. McDaniel, 529 U.S. 473 (2000) ................ 24, 25, 26
TABLE OF AUTHORITIES — Continued
Page
Stewart v. Martinez-Villareal, 523 U.S. 637
iin teaieaciahata iether iachiaieit tala inaiitiiaaiadegs 11, 13, 14, 24, 25
In re Tolliver, 97 F.3d 89 (5th Cir. 1996) ......................000 23
United States v. Agurs, 427 U.S. 97 (1976) ..................0000. 17
United States v. Bascaro, 742 F.2d 1335 (11th Cir.
Ic dacniccaieeetebesieneeitha taeda itahainaead indiana teil lisinaatinrinimeal 18
United States v. Cronic, 466 U.S. 648 (1984).............. 17, 18
United States v. Disston, 582 F.2d 1108 (7th Cir.
TT ihinaiiacesienipaenesniteiitatadta ineanreiaitaniraieaiaatininaihiaiidaiinaemniedl 18
United States v. Douglas, 874 F.2d 1145 (7th Cir.
Eee eeee eee ene ve 18
United States v. Emmanuel, 288 F.3d 644 (4th Cir.
Eee e Oem Neen een 11, 22
United States v. Endicot?, 869 F.2d 452 (9th Cir.
Silesia ieadiclchaintaiinaitcnatit lied Detail 18
United States v. Espinosa-Hernandez, 918 F.2d 911
ESTEE Onn nnn EEO 18
United States v. Evans, 224 F.3d 670 (7th Cir. 2000).....18, 19
United States v. Frost, 125 F.3d 346 (6th Cir. 1997) ...10, 17
United States v. Fuentes-Lozano, 580 F.2d 724 (5th
a Se erinsientainetnteaieieiestea aati inetabieeaidais sali diaianiiatiiaaaletasiatartantias 18
United States v. Josleyn, 206 F.3d 144 (lst Cir.
TEE eee ee Mee 10, 17
United States v. Jones, 597 F.2d 485 (5th Cir. 1979)......... 18
United States v. Jordan, 915 F.2d 622 (11th Cir.
EC Re ED KLEMM eee 21
United States v. Kelly, 790 F.2d 130 (D.C. Cir. 1986) .....10, 18
vi
TABLE OF AUTHORITIES — Continued
United States v. Kelly, 235 F.3d 1238 (10th Cir.
I iene iat hile 16
United States v. Palmer, 296 F.3d 1135 (D.C. Cir.
RC een ene ener Se a eee 10, 22
United States v. Prescott, 221 F.3d 686 (4th Cir.
ER erate ee ee NC a ET 20
United States v. Runyan, 290 F.3d 223 (5th Cir.
aC oe nen en ee ee cere ae 10, 17
United States v. Seesing, 234 F.3d 456 (9th Cir.
EE oe een SNC ee eC 11, 22
United States v. Shaffer, 789 F.2d 682 (9th Cir.
SRN e en ee EN ee 16
United States v. Warner, 23 F.3d 287 (10th Cir.
eae a neon, Seer Rene 15, 21
United States v. Williams, 613 F.2d 573 (5th Cir.
TE I Liye ee ee Ce a nee 18
United States v. Williams, 737 F.2d 594 (7th Cir.
it icine dda ia alae ial 18
STATUTES
Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. 104-132, 110 Stat. 1217................... passim
| 11
-——— ee ee
SO es re egy a ere ee
vii
TABLE OF AUTHORITIES - Continued
Page
SP TEE: TIE ieiesintiiernnienniiinsiinctniantantinsnninnmendiiiisiineuindininaiiaaaial 3,12
Ns TTT sisiirercrnnnddiinmnsineitieteainnaniatioadtins 12, 13, 24
Sts Tan UIIIIITTTTI sis rinrecrnnnnasiciisinstinsinaninianiamauntidibinieaiialidiniats 12
Be SEIT cc iininiiccnnnnsinsecitinnnditintsisenimniinbemnesaniinees 12
28 U.S.C. § 2244(bX3)E) ..........ceeeeeeeeeeeeees 9, 11, 12, 13, 14
IIIs TITTTIITTTsiieittcnarseeisieitablindnitinnenaiiaiadinicinanietainiptantiieeaemaiiiaiss 12
le ee ccinntccuinsnscneuiescinsnninenstnnniataninitunanmeiios passim
MISCELLANEOUS
Harvey Bartle, Comment, One Bite at the Apple:
The Effect of Recharacterization on Post-
conviction Relief Under 28 U.S.C. $2255, 75
SG Sie es CIEE scrccnrrcenetensermesenensecninpsmsnsscesnens 22
BLACK’S LAW DICTIONARY (6th ed. 1990) .0...........00:cccceceeeees 15
BLACK’S LAW DICTIONARY (7th ed. 1999) ..0.......0.ccccceeeees 15
CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND
IGS SHINEE cecncnnenrneneesintsrumeenienentemmenenaps 17
Ses a INS Us Oil icieienisentcicnrninninicindenadtinteintinnindatntiminnnieneaisiiel 21
Oe passim
ee 15, 16
ee 21
——
1
INTEREST OF AMICUS CURIAE'
The National Association of Criminal Defense Lav-
yers (“NACDL”) is a nonprofit corporation with a member-
ship of more than 10,000 attorneys and 28,000 affiliate
members in all fifty states. The American Bar Association
recognizes the NACDL as an affiliate organization and
awards it full representation in its House of Delegates.
The NACDL was founded in 1958 to promote study
and research in the field of criminal law; to disseminate
and advance knowledge of the law in the area of criminal
practice; and to encourage the integrity, independence, and
expertise of defense lawyers in criminal cases. Among the
NACDL’s objectives is to ensure the proper and fair
administration of justice, and the continued recognition of
and adherence to the Bill of Rights in order to sustain the
quality of the American system of justice.
¢
STATUTORY PROVISIONS AND RULE INVOLVED
When petitioner moved in 1994 for a new trial based
on newly discovered evidence, Federal Rule of Criminal
Procedure 33 provided in pertinent part:
' This amicus curiae brief is submitted in support of petitioner
Hernan O’Ryan Castro. By letters filed with the Clerk of the Court,
petitioner and respondent have consented to the filing of this brief. No
party other than counsel authored this brief in whole or in part. No
person or entity other than amicus curiae, its members, or its counsel
have made a monetary contribution to the preparation or submission of
this brief.
2 3
Title 28, section 2244 of the United States Code provides
in pertinent part:
A motion for a new trial based on the ground of
newly discovered evidence may be made only be-
fore or within two years after final judgment, but
if an appeal is pending the court may grant the
motion only on remand of the case.
Title 28, section 2255 of the United States Code provides
in pertinent part:
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 Consti-
tution 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.
A second or successive motion must be certi-
fied as provided in section 2244 by a panel of the
appropriate court of appeals to contain —
(1) newly discovered evidence that,
if proven and viewed in light of the evi-
dence 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 re-
view by the Supreme Court, that was pre-
viously unavailable.
A SE Sa arrears ee a —
(b)(1) Aclaim presented in a second or suc-
cessive habeas corpus application under section
2254 that was presented in a prior application
shall be dismissed.
(2) Aclaim presented in a second or succes-
sive habeas corpus application under section
2254 that was not presented in a prior applica-
tion shall be dismissed unless —
(3A) Before a second or successive appli-
cation permitted by this section is filed in the
district court, the applicant shall move in the ap-
propriate court of appeals for an order authoriz-
ing 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 deter-
mined by a three-judge panel of the court of ap-
peals.
(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 of appeals to file a second or successive
application shall not be appealable and shall not
4
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.
¢
STATEMENT
Petitioner Hernan O’Ryan Castro was tried and found
guilty on a two-count indictment in April 1992. J.A. 137.
On July 14, 1992, a judgment of conviction was entered,
and a twenty-year prison sentence was imposed. J.A. 3-5.
The Court of Appeals issued an opinion affirming Castro’s
conviction on March 24, 1994 and denied rehearing en
banc on June 15, 1994. J.A. 137-38; 26 F.3d 1123 (table).
This Court denied certiorari on October 17, 1994. 513 U.S.
950. o=-
A. Proceedings on the Motion Brought by
Petitioner Under Rule 33.
On July 5, 1994, less than one month into the two-
year period that Fed. R. Crim. P. 33 then provided for such
motions, petitioner filed a motion under Rule 33 for a new
trial on the ground of newly discovered evidence. J.A. 7.
Petitioner filed the motion pro se. Id. The principal grounds
for petitioner’s motion were the government’s failure to
disclose that it had entered into a letter agreement grant-
ing testimonial immunity to an important government
witness, and its failure to correct false testimony. J.A. 9-
35. Petitioner sought relief under Brady v. Maryland, 373
5
U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150
(1972). J.A. 9.
In opposing petitioner’s motion, the government
contended that “Castro’s allegation of a Brady/Giglio
violation is more properly cognizable under a motion
pursuant to 28 U.S.C. § 2255 ....” J.A. 110. The govern-
ment cited no authority in support of its contention.
Although petitioner had not sought relief under § 2255,
the government announced it had “no objection” to his
motion “being considered as demanding relief under Rule
33 and 28 U.S.C. § 2255.” J.A. 110.
In his reply, petitioner disputed the government’s
contention that his Brady/Giglio claim was “more properly
cognizable” under § 2255. Petitioner insisted he had “filed
the proper motion.” J.A. 116.
The District Court denied petitioner’s motion on
October 28, 1994. J.A. 137. After noting that the govern-
ment had said it “has no objection to defendant’s motion
for new trial being treated as demanding relief under both
Rule 33 and 28 U.S.C. § 2255,” the court said it would
“consider defendant’s motion as requesting both kinds of
relief.” J.A. 140. The court did not address whether the
government was correct in asserting that the Brady/Giglio
claim was “more properly cognizable” under § 2255. On the
merits, the court noted the government’s concession that
three of the four requireménts for relief under Brady were
satisfied, but it ruled that petitioner had not satisfied the
fourth, which requires a reasonable probability that the
suppression affected the outcome. J.A. 140-41.
Petitioner appealed from the denial of his motion. As’
in the District Court, he sought no relief under § 2255. In
a one-paragraph opinion issued on March 19, 1994, the
6
Court of Appeals affirmed for the reasons set forth by the
District Court. J.A. 147.
B. Proceedings on the Motion Brought by
Petitioner Under § 2255.
On April 22, 1997, petitioner, still proceeding pro se,
filed a timely motion under § 2255 to vacate his sentence.
J.A. 148-61. Petitioner advanced several claims of den‘al of
effective assistance of counsel. J.A. 154-55. The District
Court denied the motion on the merits on April 13, 1998
and denied a certificate of appealability. JA. 162. In
February 1999, however, the Court of Appeals granted
petitioner’s motion for issuance of such a certificate with
respect to one of petitioner’s ineffective-assistance claims.
J.A. 165.
On June 13, 2000, the Court of Appeals ruled that the
District Court had decided the ineffective-assistance issue
under the wrong legal standard. J.A. 172. The Court of
Appeals vacated the denial of petitioner’s § 2255 motion
and remanded with instructions to apply the correct
standard, develop the facts more fully, and “examine the
record to determine if this petition is successive.” J.A. 172.
On remand, counsel was appointed to represent
petitioner. But shortly before the start of an evidentiary
hearing on the ineffective-assistance claim, the govern-
ment moved to dismiss petitioner’s § 2255 motion as
successive, relying upon the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. 104-132,
110 Stat. 1217. Petitioner opposed the motion, disputing
that his motion is successive. The magistrate judge held a
one-day evidentiary hearing and received post-hearing
briefs but later recommended that petitioner’s motion be
7
dismissed as successive. J.A. 175-81. He reasoned that in
1994 petitioner had “asserted his right to a new trial based
on alleged constitutional violations .... Specifically, peti-
tioner alleged that the Government violated the rules
enunciated in Brady and Giglio when it failed to disclose
exculpatory evidence and used perjured testimony.” J.A.
180. In the judge’s view, because “petitioner’s claims were
based on his constitutional rights to due process,” they
“were more properly raised in a 28 U.S.C. § 2255 motion.”
J.A. 180. No case law or other authority was cited in
support of that determination.
The District Court adopted the magistrate judge’s
report and recommendation, added a few comments of its
own, and dismissed petitioner’s motion as successive. J.A.
182-85. According to the court, petitioner had been “put on
notice by the Government’s response to his motion for a
new trial, filed under Federal Rule of Criminal Procedure
33, that his motion should be construed as a motion under
§ 2255 because of the constitutional cldims that Petitioner
raised in his motion.” J.A. 183. No precedent for so con-
struing the motion was cited. Although in 1994 petitioner
had begun his argument in reply by referencing the
government's contention about § 2255 and then insisting
he had “filed the proper motion,” J.A. 116, the District
Court faulted petitioner for “never object{ing] to the
characterization of his motion as one under § 2255.” J.A.
183.
The District Court granted a certificate of appealabil-
ity on one issue: whether Castro’s 1997 motion is a succes-
sive motion. J.A. 186. Petitioner did not apply for
authorization to file a successive motion but instead
through his appeal challenged the District Court’s ruling
8
that his motion was successive. See Brief of Appellant
Hernan O’Ryan Castro, No. 01-12181 (June 8, 2001).
On January 2, 2002, the Court of Appeals issued an
opinion that, had it not been withdrawn, would have
vacated the District Court’s dismissal. J.A. 188-97. “O’Ryan
Castro’s Rule 33 motion for new trial asserted a cognizable
ground for relief,” the court noted. J.A. 196. “The motion
was based upon alleged new evidence, which Rule 33
explicitly provides as a basis for bringing such a motion.”
J.A. 196. Moreover, in his pro se reply in support of his
1994 motion, petitioner had “made the effort to reply in a
manner that reaffirmed his intent to move for a new trial
under [Rule 33] rather than seek habeas relief.” J.A. 196.
The court held that petitioner’s 1997 motion was not a
successive § 2255 motion because “a district court’s re-
characterization of a petitioner’s initial postconviction
motion will not be considered a ‘first’ habeas petition for
AEDPA purposes unless the petitioner is given notice of
the consequences of such recharacterization.” J.A. 197.
The government did not request rehearing or rehear-
ing en banc. Nevertheless, the Court of Appeals withheld
issuance of its mandate. Eventually, on May 7, 2002, a
divided panel vacated the prior opinion sua sponte and
substituted an opinion affirming the dismissal of peti-
tioner’s motion as successive. J.A. 198-208.
This time, the panel majority emphasized that “when
[petitioner] filed his motion for new trial pursuant to Rule
33 based upon newly discovered evidence, the District
Court recharacterized his Rule 33 motion as both a motion
for a new trial and a § 2255 motion.” J.A. 200-01. Accord-
ing to the new opinion, “O’Ryan Castro’s claims were
based upon his constituticnal right to due process and
9
were more properly raised in a § 2255 petition.” J.A. 201.
The opinion cited no authority supporting that conclusion.
But declaring that “[d]istrict courts have aiways had the
power to recharacterize pro se petitioners’ motions,” id.,
the panel majority deemed petitioner’s 1997 motion under
§ 2255 a successive motion. J.A. 202-04. Judge Roney
dissented. J.A. 207-08.
+
SUMMARY OF ARGUMENT
I. This Court has jurisdiction to review the decision
of the Court of Appeals. Petitioner does not seek review of
the denial of authorization to file a successive motion; he
seeks review of the ruling that his motion was successive.
Title 28, section 2244(b)\(3)(E) of the United States Code
provides only that the grant or denial of authorization to
file a successive application shall not be the subject of a
petition for certiorari.
II. The Eleventh Circuit was demonstrably wrong in
ruling that petitioner’s 1997 motion was an impermissible
second or successive motion under § 2255. Section 2255 by
its terms restricts only the filing of “[a] second or succes-
sive motion ....” (Emphasis added). The restriction
plainly applies only to a second or successive motion under
§ 2255. For three reasons, petitioner’s 1994 motion was
not a motion under § 2255, and therefore his 1997 motion
was his first motion under that statute.
First, petitioner filed his 1994 motion solely under
Rule 33. When challenged by the government, he did not
acquiesce in having his motion considered under § 2255
but rather insisted he had filed the proper motion. For the
fundamental reason that petitioner requested no relief
10
under § 2255, he cannot be said to have made a “motion”
under § 2255. The court may have imputed to him a
request for relief under that statute, but he did not move
for relief under it.
Second, it was entirely proper for petitioner to bring
his 1994 motion solely under Rule 33. When Brady and
Giglio claims are predicated on newly obtained proof as
was the case here, they can be raised under Rule 33 in a
motion for new trial based on newly discovered evidence.
See, e.g., United States v. Runyan, 290 F.3d 223, 246-47
(5th Cir. 2002); United States v. Josleyn, 206 F.3d 144, 151-
52 (1st Cir. 2000); United States v. Frost, 125 F.3d 346, 382
(6th Cir. 1997); United States v. Kelly, 790 F.2d 130, 135
(D.C. Cir. 1986). Indeed, in Giglio itself, the defendant
sought relief, and eventually obtained it in this Court, by
filing exactly such a motion. 405 U.S. at 152. Whether or
not courts have any latitude to recharacterize, as § 2255
motions; motions that are improperly brought under
another rule or statute, there is no justification for rechar-
acterizing, over the prisoner’s objection, a motion properly
brought under another rule or statute.
Third, the court never put petitioner on notice that, if
he proceeded with his motion, he would be deemed to have
moved for relief under § 2255. Even if petitioner’s reliance
on Rule 33 had been mistaken, under no reasonable
interpretation of AEDPA’s restrictions on second or succes-
sive motions can a prisoner’s motion for relief under
another rule or statute be deemed a motion under § 2255,
in the absence of (1) notice of the court’s intention to
recharacterize his motion as one under § 2255, and (2)
voluntary action by the prisoner in proceeding forward
after having received such notice. See Morales v. United
States, 304 F.3d 764, 767 (8th Cir. 2002); United States v.
11
Palmer, 296 F.3d 1135, 1146 (D.C. Cir. 2002); In re Shelton,
295 F.3d 620, 622 (6th Cir. 2002); United States v. Em-
manuel, 288 F.3d 644, 649 (4th Cir. 2002); Henderson v.
United States, 264 F.3d 709, 710 (7th Cir. 2001); United
States v. Kelly, 235 F.3d 1238, 1242 (10th Cir. 2000);
United States v. Seesing, 234 F.3d 456, 464 (9th Cir. 2000);
Raineri v. United States, 233 F.3d 96, 100 (1st Cir. 2000);
United States v. Miller, 197 F.3d 644, 650-52 (3d Cir.
1999); Adams v. United States, 155 F.3d 582, 584 (2d Cir.
1998).
+
ARGUMENT
I. THIS COURT HAS JURISDICTION TO RE-
VIEW THE ELEVENTH CIRCUIT’S RULING
THAT PETITIONER’S 1997 MOTION IS A
SUCCESSIVE MOTION UNDER § 2255.
This Court has jurisdiction under 28 U.S.C. § 1254(1)
to review the decision of the Court of Appeals. That con-
clusion is dictated by the language of § 2244(b)(3\E) and
is supported as well by this Court’s decision in Stewart v.
Martinez- Villareal, 523 U.S. 637 (1998).
By its terms, the provision in § 2244(b\3\E) that
“(t]he grant or denial of an authorization by a court of
appeals to file a second or successive application . .. shall
not be the subject of a petition for rehearing or for a writ of
certiorari” does not apply to the ruling of the Court of
Appeals in this case. Whether or not that provision de-
prives this Court of jurisdiction to review, on a writ of
12
certiorari, a denial of authorization to file a successive
motion under § 2255,’ petitioner does not seek review of
such a denial. Instead, petitioner seeks review of the
ruling of the Court of Appeals that his motion is succes-
sive.
Whether petitioner’s motion is successive was the sole
issue before the Court of Appeals. Indeed, the sole issue on
which petitioner was granted a certificate of appealability
was whether his 1997 motion is successive. J.A. 186.
Petitioner has consistently contended that his motion is
not successive, and therefore he has never applied for
authorization to file a successive motion. Nothing in the
language of § 2244(b\3\E) suggests that it affects this
Court’s jurisdiction to review the Eleventh Circuit’s ruling
* Section 2255 provides that “[a] second or successive motion must
be certified as provided in section 2244 ....” It is thus clear that a
second or successive motion under § 2255 requires authorization of the
appropriate court of appeals. It is not clear, however, that
§ 2244(b\3XE) applies to the grant or denial of authorization for a
federal prisoner to file a successive motion under § 2255, as opposed to
the grant or denial of authorization for a state prisoner to file a
successive application under 28 U.S.C. § 2254. Section 2244(b) does not
itself refer to § 2255 but only refers to applications under § 2254. See 28
U.S.C. § 2244(b\1) & (2); see also Felker v. Turpin, 518 U.S. 651, 658-59
(1996) (“Section 2244(b\3) prevents this Court from reviewing a court
of appeals order denying leave to file a second habeas petition by appeal
or writ of certiorari.”). Moreover, although the last paragraph of § 2255
provides that second or successive motions under § 2255 must be
certified as provided in § 2244 to contain one of the matters described in
the last paragraph of § 2255, Congress did not specify that grant or
denial of such certification shal] not be the subject of a petition for
certiorari. And review on writ of certiorari of a denial of certification to
file a second or successive § 2255 motion does not implicate the
federalism or comity concerns implicated when federal habeas corpus
review of a state court judgment is prolonged.
13
that petitioner’s 1997 motion is successive. That provision
eliminates certiorari jurisdiction with respect to “(t]he
grant or denial of an authorization by a court of appeals to
file a second or successive application ... ,” not with
respect to a ruling that an application is or is not a second
_ or successive application.
In Martinez-Villareal, this Court considered whether
§ 2244(b\(3XE) deprived it of jurisdiction to review the
Ninth Circuit’s holding that the § 2244(b) restrictions on
successive petitions did not apply to a habeas corpus
petition that challenged only the petitioner’s competency
to be executed. The Court held that its jurisdiction was not
affected by § 2244(b)(3)(E):
If the Court of Appeals in this case had
granted respondent leave to file a second or suc-
cessive application, then we would be without ju-
risdiction to consider the petitioners’ petition and
would have to dismiss the writ. This is not, how-
ever, what the Court of Appeals did. The Court of
Appeals held that the § 2244(b) restrictions sim-
ply do not apply to respondent’s Ford [v. Wain-
wright, 477 U.S. 399 (1986),] claim, and that
there was accordingly no need for him to apply
for authorization to file a second or successive
petitior.. We conclude today that the Court of Ap-
peals reached the correct result in this case, and
that we therefore have jurisdiction to consider
petitiorers’ petition.
523 WS. at 641-42.
In this case, as in Martinez-Villareal, the issue de-
cided by the Court of Appeals was whether the § 2244(b)
restrictions apply, not whether to authorize a successive
application. “If the Court of Appeals in this case had
ee
14
{denied petitioner] leave to file a second or successive
application, then [this Court] would be without jurisdic-
tion to consider the [Castro’s] petition and would have to
dismiss the writ.” 523 U.S. at 641. But as in Martinez-
Villareal, “[t]his is not ... what the Court of Appeals did.”
Id. Petitioner never requested leave to file a second or
successive application but instead pressed his contention
that his motion was not a second or successive motion. The
Court of Appeals held that it was a second or successive
motion, but that holding was error. See Part II, infra. An
erroneous invocation of the § 2255 restrictions on second
or successive motions cannot shut the door to a petition for
certiorari, for § 2244(b\(3)(E) only precludes review on writ
of certiorari of “[tJhe grant or denial of an authorization by ~
a court of appeals to file a second or successive application
....” (Emphasis added). Petitioner’s 1997 motion was not
“a second or successive application,” and petitioner neither
sought nor was required to seek authorization to file such
an application. Section 2244(b)\(3)E) therefore does not
apply.
Il. THE RECHARACTERIZATION OF PETI-
TIONER’S RULE 33 MOTION AS A § 2255 MO-
TION DOES NOT JUSTIFY DISMISSAL OF
HIS FIRST REQUEST FOR RELIEF UNDER
§ 2255 AS SUCCESSIVE.
The Court of Appeals erred in ruling that, when
petitioner in 1997 requested for the first time that he be
granted relief under § 2255, his motion was nevertheless a
successive motion under the statute.
ee ee eee ee
15
A. In 1994, Petitioner Requested No Relief
Under § 2255.
Analysis should begin with the language of the stat-
ute. See Duncan v. Walker, 533 U.S. 167, 172 (2001).
Section 2255 restricts only the filing of “[a] second or
successive motion ....” (Emphasis added). Congress could
have imposed restrictions on a second or successive con-
sideration by a federal district court of a prisoner’s enti-
tlement to relief under § 2255. But that is not what
Congress did. It chose only to limit the filing of multiple
motions under the statute.
Under the ordinary definition of a “motion,” peti-
tioner’s 1994 filing was not a motion under § 2255.
BLACK’s LAW DICTIONARY (7th ed. 1999) defines a motion
as “[a] written or oral application requesting a court to
make a specified ruling or order.” Jd. at 1031; see also
BLACK’s LAW DICTIONARY 1013 (6th ed. 1990) (defining
“motion” as “[aJn application made to a court or judge for
purpose of obtaining a rule or order directing some act to
be done in favor of the applicant”). In 1994 petitioner did
not request any relief under § 2255, insisted upon proceed-
ing under Rule 33, and thus did not make a motion under
§ 2255, as the term “motion” is ordinarily understood.’
* See, e.g., Raineri, 233 F.3d at 100 (“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.”); United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (“W]e
decline to construe Defendant's Rule 32 motion as a § 2255 motion
because it is apparent ... that Defendant did not intend the motion to
be so construed.”).
16
B. It Was Completely Proper for Petitioner
To Bring His 1994 Motion Solely Under
Rule 33.
One may assume for the sake of argument that in
some circumstances, even though a prisoner had never
before requested any relief under § 2255, a court nonethe-
less might be permitted to treat his first request for relief
under that statute as “[a] second or successive motion
...,” on the ground that the rule or statute invoked by the
prisoner in a prior motion was not applicable and there-
fore the motion could only have been brought under
§ 2255. In this case, however, that assumption takes the
government nowhere, for petitioner’s 1994 motion was
properly brought under Rule 33.
A motion under § 2255 to vacate a sentence or-convic-
tion and a motion under Rule 33 for a new trial based on
newly discovered evidence are “separate and distinct
means of attacking a judgment.” United States v. Shaffer,
789 F.2d 682, 687 n.5 (9th Cir. 1986); accord United States
v. Ostrer, 422 F. Supp. 93, 95 (S.D.N.Y. 1976); cf. Heflin v.
United States, 358 U.S. 415 (1959) (granting relief under
Fed. R. Crim. P. 35 though relief was not available under
§ 2255). Sometimes only § 2255 is available.‘ On other
occasions, a citizen may find that her only vehicle for
obtaining relief is Rule 33.° In still other instances, both
Rule 33 and § 2255 may be available.
* For example, Rule 33 by its terms only authorizes a motion for a
new trial and thus is not available to challenge a conviction pursuant to
a guilty plea. See, e.g., Raineri, 233 F.3d at 100 n.4.
* For example, § 2255 authorizes a motion only by a person “in
custody.” Similarly, courts will not entertain a § 2255 motion while an
(Continued on following page)
17
In this case, it was entirely proper for petitioner to
raise his Brady/Giglio claim under Rule 33. In Giglio
itself, this Court held that a defendant was entitled to a
new trial based on new evidence that, contrary to a key
government witness’s testimony on cross-examination, a
prosecutor had promised the witness he would not be
prosecuted if he testified. The defendant had presented the
new evidence in a Rule 33 motion for a new trial based on
newly discovered evidence. See Giglio v. United States, 405
U.S. 150, 152 (1972). Similarly, in United States v. Agurs,
427 U.S. 97 (1976), the Court decided on the merits the
defendant’s claim that he was entitled to a new trial under
Brady because of new evidence that the prosecution had
failed to disclose impeachment material. Jd. at 113-14.
Once again, the evidence had been presented in a Rule 33
motion for a new trial based on newly discovered evidence.
See id. at 100. The courts of appeals likewise have recog-
nized that a claim of prosecutorial suppression of exculpa-
tory or impeachment material, if based on newly obtained
evidence that the defendant could not have obtained
earlier through due diligence, is properly raised under
Rule 33 in a motion for new trial based on newly discov-
ered evidence. See, e.g., United States v. Runyan, 290 F.3d
223, 246-47 (5th Cir. 2002); United States v. Josleyn, 206
F.3d 144, 151-52 (1st Cir. 2000); United States v. Frost, 125
appeal is pending. See CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND
PROCEDURE § 597, at 483 & n.10 (2d ed. 1982), and cases cited therein.
In contrast, when a Rule 33 motion is filed while an appeal is pending,
the district court has “jurisdiction to entertain the motion and either
deny the motion on the merits, or certify its intention to grant the
motion to the Court of Appeals, which could then entertain a motion to
remand the case.” United States v. Cronic, 446 U.S. 648, 667 n.42
(1984). -
18
F.3d 346, 382 (6th Cir. 1997); United States v. Espinosa-
Hernandez, 918 F.2d 911, 913-14 (11th Cir. 1990); United
States v. Douglas, 874 F.2d 1145, 1161, 1163 (7th Cir.
1989); United States v. Kelly, 790 F.2d 130, 135 (D.C. Cir.
1986) (Wald, J., joined by Scalia & Starr, JJ.).*
* Federal courts also have entertained a wide variety of other
constitutional claims presented in motions under Rule 33 for a new
trial based on newly discovered evidence, including claims of improper
influence upon the jury, see United States v. Endicott, 869 F.2d 452, 457
(9th Cir. 1989); Government of V.I. v. Joseph, 685 F.2d 857, 863 n.3 (3d
Cir. 1982); United States v. Jones, 597 F.2d 485, 488 (5th Cir. 1979);
Richardson v. United States, 360 F.2d 366, 368 (5th Cir. 1966); Holmes
v. United States, 284 F.2d 716, 719-20 (4th Cir. 1960), intrusion into
confidential communications protected by the Sixth Amendment mght
to counsel, see Kelly, 790 F.2d at 136-38; United States v. Disston, 582
F.2d 1108, 1112 (7th Cir. 1978); Caldwell v. United States, 205 F.2d 879
(D.C. Cir. 1953); Coplon v. United States, 191 F.2d 749, 756-57 (D.C. Cir.
1951), violation of the Fourth Amendment, see United States v. Bascaro,
742 F.2d 1335, 1344 (11th Cir. 1984); United States v. Williams, 737
F.2d 594, 616-17 (7th Cir. 1984), and incompetence to stand trial, see
United States v. McCarthy, 54 F.3d 51, 55 (2d Cir. 1995). See also
Cronic, 466 U.S. at 667 n.42; United States v. Williams, 613 F.2d 573,
575 (5th Cir. 1980); United States v. Fuentes-Lozano, 580 F.2d 724, 725-
26 (5th Cir. 1978).
A recent Seventh Circuit decision, United States v. Evans, 224 F.3d
670 (7th Cir. 2000), treats a Rule 33 motion raising constitutional
claims as a § 2255 motion, for purposes of the restrictions on second or
successive motions, unless the motion is what the court calls “[a) bona
fide motion for a new trial on the basis of newly discovered evidence
motion.” Jd. at 673. Such a “bona fide motion,” said the court, “does not
contend that the conviction or sentence violates the Constitution or any
statute.” Jd. at 673-74 (emphasis added). Evans is misguided and in any
event does not assist the government here. First, Rule 33 refers
generally to “newly discovered evidence,” and nothing in its text
remotely suggests that motions alleging constitutional violations are
any less bona fide than motions not alleging such violations. Second,
the opinion in Evans ignores decisions reaching back half a century
that have entertained new-evidence motions alleging constitutional
(Continued on following page)
19
Neither the District Court nor the Court of Appeals
conducted the kind of examination that should be required
before any motion filed under another rule or statute can
be treated as a motion under § 2255 for purposes of that
statute’s restrictions on multiple motions. In response to
petitioner’s initial post-conviction motion, the government
asserted that “Castro’s allegation of a Brady/Giglio viola-
tion is more properly cognizable under a motion pursuant
to 28 U.S.C. § 2255....” J.A. 110. But neither the District
Court nor the Court of Appeals considered — in any of their
rulings in this case —- whether the government could back
up that assertion with any authority.
In short, the courts below never asked a question that
should be asked before any recharacterization of a post-
conviction motion — whether brought by a pro se prisoner
or not — is ever held to bar a later motion under § 2255:
Was the first motion properly brought under the rule or
statute relied upon by the movant? In this case, the
answer to that question is “Yes.” Because petitioner’s 1994
motion was properly brought under Rule 33, under no
circumstances should it have been treated as a § 2255
motion, for purposes of the restriction on successive
motions, without petitioner’s consent.
violations. Third, the prisoner before the court in Evans appeared pro
se. See id. at 672. The Seventh Circuit did not appoint counsel and
therefore did not have the benefit of adversary briefing by counsel.
Finally, the Seventh Circuit itself subsequently held that a motion
treated as a § 2255 motion only by virtue of Evans's judge-made rule
does not count as a § 2255 motion for purposes of the restrictions on
second or successive motions, where, as here, the movant was afforded
no notice. See Henderson v. United States, 264 F.3d 709, 711 (7th Cir.
2001).
20
The mere preference of the government or the court to
decide the 1994 motion under § 2255 as well Rule 33
affords no justification for barring a later motion under
the statute. The United States Code and the Federal Rules
of Criminal Procedure authorizes certain motions that
may be brought by citizens who believe they were wrong-
fully convicted of a federal crime.’ If a citizen properly files
one of those motions, the court should not be permitted to
foreclose the citizen from thereafter timely filing another
authorized motion, by the court’s action in imputing to the
citizen, over objection, a request for relief under a provi-
sion that the citizen did not invoke. Absent the movant’s
consent, the most basic precondition for ever treating a
motion filed under another provision as a motion under
§ 2255, for purposes of that statute’s restrictions on
successive motions, should be careful consideration of
whether the motion could only be brought under § 2255.
C. Petitioner Was Not Afforded Notice of the
District Court’s Proposed Recharacteriza-
tion or an Opportunity To Withdraw His
Motion.
Even if petitioner’s 1994 motion had not been a proper
Rule 33 motion, the court’s recharacterization of the
motion could not justify dismissal of his 1997 motion,
absent notice in 1994 that petitioner’s motion would be
recharacterized and an opportunity to withdraw it.
” See United States v. Prescott, 221 F.3d 686, 689 (4th Cir. 2000) (“A
variety of post-trial motions are available to prisoners and were
available before the enactment of the AEDPA.”).
21
Prior to AEDPA, courts sometimes treated pro se mo-
tions filed under other provisions as § 2255 motions in order
to reach the merits of the claims presented. See Raineri v.
United States, 233 F.3d 96, 97 (1st Cir. 2000) (“[C]Jourts
frequently have recharacterized inartfully drawn plead-
ings to assist pro se prisoners who mistakenly relied on
inappropriate rules or statutes.”). Whether a motion filed
under another provision would be deemed a § 2255 motion
depended on the circumstances and the practice of the
court in which the motion was filed. For example, in
United States v. Jordan, 915 F.2d 622 (11th Cir. 1990), a
defendant proceeding pro se mistakenly relied upon Fed.
R. Crim. P. 35(a) in contending that his offense of convic-
tion was not punishable by a term of supervised release.
Id. at 624. The Eleventh Circuit held that the defendant’s
claim was properly decided under § 2255. Jd. at 625. In
contrast, in United States v. Warner, 23 F.3d 287 (10th Cir.
1994), the Tenth Circuit declined to treat a motion under
Fed. R. Crim. P. 32 as a § 2255 motion, “because it is
apparent ... that Defendant did not intend the motion to
be so construed.” Jd. at 291.
AEDPA has required courts to rethink the proper
approach to recharacterization because the statute prohibits
consideration of a second or successive § 2255 motion except
in limited circumstances. Whereas before AEDPA some
courts routinely recharacterized pro se motions filed under
other provisions as § 2255 motions, see Adams v. United
States, 155 F.3d 582, 583 (2d Cir. 1998), nearly all the
circuits have recognized that after AEDPA such an ap-
proach is not appropriate. Otherwise, “a conversion,
initially justified because it harmlessly assisted the
prisoner-movant in dealing with legal technicalities, may
result in a disastrous deprivation of a future opportunity
22
to have a well-justified grievance adjudicated,” id., and
prisoners “face losing potentially valid constitutional
claims at the hands of judges who are applying a rule of
liberal construction that was created to benefit pro se
claimants.” United States v. Miller, 197 F.3d 644, 649 (3d
Cir. 1999).
Ten of the twelve circuits that hear criminal cases
have concluded that AEDPA is not properly construed to
permit dismissal of a § 2255 motion as second or succes-
sive, based on a prior recharacterization of a motion filed
under another rule or statute, unless the movant (i)
consented to the recharacterization or (ii) was given notice
of the proposed recharacterization and an opportunity to
withdraw the motion. See Morales v. United States, 304
F.3d 764, 767 (8th Cir. 2002); United States v. Palmer, 296
F.3d 1135, 1146 (D.C. Cir. 2002); In re Shelton, 295 F.3d
620, 622 (6th Cir. 2002); United States v. Emmanuel, 288
F.3d 644, 649 (4th Cir. 2002); Henderson v. United States,
264 F.3d 709, 710-11 (7th Cir. 2001); United States v. Kelly,
235 F.3d 1238, 1242 (10th Cir. 2000); United States v.
Seesing, 234 F.3d 456, 464 (9th Cir. 2000); Raineri, 233
F.3d at 100-101; Miller, 197 F.3d at 650-52; Adams, 155
F.3d at 584;° see generally Harvey Bartle, Comment, One
* Some of the cited decisions disagree on one issue not critical to
the outcome here, i.e., whether courts should refrain from recharacter-
izing a post-conviction motion unless they follow procedures ensuring
notice and an opportunity to withdraw, or may instead follow prior
practices but simply not count, for purposes of the restrictions on
second or successive motions, a motion recharacterized as a § 2255
motion without notice and an opportunity to withdraw. Compare
Ranieri, 233 F.3d at 100 (declining to require district courts to use “a
new protocol” in deciding initial post-conviction motions), with, e.g.,
Miller, 197 F.3d at 652 (specifying procedure for district courts to
(Continued on following page)
—
23
Bite at the Apple: The Effect of Recharacterization on Post-
conviction Relief Under 28 U.S.C. § 2255, 75 Temp. L. REV.
613 (2002). These decisions are sound, and the construc-
tion they adopt should be adopted by this Court as well.’
Once it is accepted that a motion should not be re-
characterized without notice and an opportunity to with-
draw the motion, a third basis for reversal of the Eleventh
Circuit’s decision becomes clear. At no time before the
District Court decided petitioner’s 1994 motion did the
court notify petitioner of its intention to recharacterize his
motion or give him an opportunity to withdraw the mo-
tion. Moreover, far from acquiescing in the government's
request that his motion be recharacterized, petitioner
unequivocally insisted he had properly filed the motion
under Rule 33. Under these circumstances, petitioner's
1994 motion could not justifiably be counted as a motion
follow). Notwithstanding this one area of disagreement, these ten
circuits concur that when a motion has been recharacterized as a § 2255
motion without notice to the prisoner, a later § 2255 motion is not a
second or successive motion under the statute.
* Apart from the Eleventh Circuit's decision here, the only contrary
decision is Jn re Tolliver, 97 F.3d 89 (5th Cir. 1996). In a one-page
opinion issued less than six months after AEDPA was signed into law,
the Fifth Circuit held that a prisoner's § 2255 motion was successive
because the district court had construed his prior post-conviction
motion “as a § 2255 motion, and granted the motion and ordered the
relief sought,” and “there is nothing else [the prior motion) could be” but
a § 2255 motion. 97 F.3d at 90. The present case is distinguishable on
both points. Petitioner was denied relief in 1994, and his motion was
proper under Rule 33. Moreover, the opinion in Tolliver did not discuss
the issue of notice and provided no reasoning that would support a
general practice of counting a motion recharacterized as a § 2255
motion as a first § 2255 motion for purposes of the restrictions on
second or successive motions.
24
under § 2255, even if petitioner’s reliance on Rule 33 had
been in error (which it was not).
In dismissing petitioner’s 1997 motion as successive,
the District Court reasoned that in 1994 petitioner had
been “put on notice by the Government’s response to his
motion for a new trial ... that his motion should be
construed as a motion under § 2255 because of the consti-
tutional claims that Petitioner raised in his motion.” J.A.
183. But in reality petitioner had only been put on notice
that the government believed petitioner's motion was
“more properly cognizable” under § 2255. He was not put
on notice that the motion should be construed as a motion
under § 2255. For the government never came forward
with any support for its contention. And although it would
not have been sufficient in any event (given that petitioner
was fully within his rights in electing to proceed solely
under Rule 33), the District Court did not afford petitioner
notice, before ruling on his motion, of its intention to
recharacterize the motion as one under Rule 33 and
§ 2255, and give him an opportunity to withdraw the
motion.
In interpreting the § 2244(b) restriction on second or
successive habeas corpus applications, this Court has
rejected proposed literal constructions that would have
denied state prisoners the opportunity to have at least a
single determination of their constitutional claims by a
federal court. See Slack v. McDaniel, 529 U.S. 473, 485-90
(2000) (holding that a habeas petition filed after an initial
petition was dismissed for failure to exhaust state reme-
dies is not a second or successive petition); Stewart v.
Martinez-Villareal, 523 U.S. 637, 643-46 (1998) (holding
that the restriction on second or successive habeas peti-
tions did not apply to a habeas petition presenting a
25
constitutional claim that the petitioner had raised in a
prior habeas petition, where the claim in the prior petition
had been dismissed as premature). In both Slack and
Martinez-Villareal, the Court emphasized that the rejected
constructions would have barred any federal habeas
review of the prisoner’s claims. See Slack, 529 U.S. at 487
(“The proposed rule would bar the prisoner from raising
nonfrivolous claims ... , even though a federal court has
yet to review a single constitutional claim.”); Martinez-
Villareal, 523 U.S. at 645 (“To hold otherwise would mean
that a dismissal of a first habeas petition for technical
procedural reasons would bar the prisoner from ever
obtaining federal habeas review.”).
This case is easier than Slack and Martinez-Villareal.
Whereas in those cases the rejected interpretations at
least could be said to be consistent with the statutory text,
here the statutory interpretation implicit in the Eleventh
Circuit’s decision finds no support in the language of
§ 2255. See Part II.A, supra. Yet that interpretation, like
the ones rejected in Slack and Martinez-Villareal, would
bar petitioner from ever obtaining review under § 2255 of
a potentially meritorious constitutional claim, one of
sufficient substance to convince the Court of Appeals to
issue a certificate of appealability when petitioner sought
to appeal from the initial denial of his 1997 motion. J.A.
165.
26
The Court’s statement in Slack that “the phrase
‘second or successive petition’ [in § 2244(b)] is a term of art
given substance in our prior habeas corpus cases,” 529
U.S. at 486, is also significant.-The phrase “second or
successive motion” in § 2255 presumably is likewise to be
viewed as a term of art given substance by prior case law.
None of this Court’s pre-AEDPA § 2255 cases support
dismissal of a § 2255 motion, on the basis of a prior motion
brought under a different rule or statute and recharacter-
ized over objection and without notice.
SJ
CONCLUSION
For the foregoing reasons, the judgment of the Court
of Appeals should be reversed.
Respectfully submitted.
Lisa B. KEMLER PAUL MOGIN
NATIONAL ASSOCIATION OF Counsel of Record
CRIMINAL DEFENSE WILLIAMS & CONNOLLY LLP
LAWYERS 725 Twelfth Street, N.W.
108 North Alfred Street Washington, DC 20005
Alexandria, VA 22314 (202) 434-5000
(703) 684-8000
Attorneys for Amicus Curiae
National Association of
Criminal Defense Lawyers
March 13, 2003
decided by the District Court in 1998, but that decision was vacated by
the Court of Appeals because the wrong legal standard was used.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.