United States v. Floyd Clark, 977 F.3d 1283

In 2009 Michael Walker was abducted; he later identified Floyd Clark as an assailant and Clark was convicted in federal court, receiving a sentence that included a mandatory § 924(c) term.
Four years after conviction Walker recanted, and in 2015 Clark filed a pro se § 2255 habeas petition raising (1) Walker’s recantation, (2) ineffective assistance of trial counsel, and (3) ineffective assistance of appellate counsel; the district court appointed counsel.
With counsel Clark supplemented his § 2255 petition to add a Johnson/Davis vagueness challenge to 18 U.S.C. § 924(c) and grounded the recantation claim in due process.
On April 22, 2019 the district court denied the first three claims but expressly reserved adjudication of the § 924(c) claim, leaving that claim pending; the court later granted a certificate of appealability (COA) limited to the recantation claim.
Clark appealed; he argued the partial denial was “practically final.” The government urged the court to treat Clark’s filings as a Federal Rule of Criminal Procedure 33 motion (new trial) and dismiss it as time-barred. The D.C. Circuit dismissed the appeal for lack of subject-matter jurisdiction.

Issue	Clark's Argument	Government's Argument	Held
Whether the district court’s partial denial (with one § 2255 claim reserved) is a "final" order enabling appeal under 28 U.S.C. § 2253	The partial denial is "practically" final and immediately appealable	The order is nonfinal because the § 924(c) claim remains pending; appeal should await final resolution	Not final; appeal dismissed for lack of jurisdiction
Whether Gillespie permits treating a nonfinal habeas order as appealable when some claims are resolved	Gillespie allows a "practical rather than technical" finality exception permitting immediate appeal	Gillespie is limited and inapplicable; finality requires resolution of the whole case	Gillespie is cabined; cannot be used to circumvent final-judgment rule
Whether a district court’s certificate of appealability alone supplies finality under § 2253	COA suffices to make the order appealable	COA does not substitute for a final decision; § 2253 requires both finality and COA	COA alone is insufficient; final order requirement remains unmet
Whether Clark’s § 2255 petition should be recharacterized as a Rule 33 motion (new trial) and dismissed as time-barred	Clark’s filing is a § 2255 civil collateral attack and should be treated on its substance	Recharacterize the motion as a Rule 33 criminal motion (separate procedural vehicle) and dismiss under the three-year limit	Recharacterization rejected; substance controls and the government’s conversion argument denied

Ritzen Grp., Inc. v. Jackson Masonry, LLC, 140 S. Ct. 582 (2020) (defining final-judgment rule: case is final when nothing remains but execution of judgment)
Gonzalez v. Thaler, 565 U.S. 134 (2012) (§ 2253 governs appellate jurisdiction in habeas cases)
Gillespie v. United States Steel Corp., 379 U.S. 148 (1964) (discussed "practical" finality but constrained by later precedent)
Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) (limits Gillespie to its peculiar facts)
Everett v. US Airways Grp., Inc., 132 F.3d 770 (D.C. Cir. 1998) (refuses to extend Gillespie as an exception to final-judgment rule)
Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737 (1976) (partial dismissals do not satisfy finality requirement)
Ciralsky v. C.I.A., 355 F.3d 661 (D.C. Cir. 2004) (finality not met if plaintiff can amend and continue litigation)
Trenkler v. United States, 536 F.3d 85 (1st Cir. 2008) (substance-over-form principle in habeas proceedings)
Palmer v. United States, 296 F.3d 1135 (D.C. Cir. 2002) (pro se filings sometimes recharacterized but courts give benefit of doubt)