Alfred B. Diggs v. United States

239 previously litany admitted that she had testified Given problems, medical coupled that she had hit in the stomach. suffering, with emotional we can- record, based on we find cannot not find that the deny- trial court erred in that the abused his trial discretion Supermarket’s Pueblo re- for a refusing testimony ter- admit the mittitur. custodian, ground that ritorial court on the V. Conclusion delay, it would have caused undue waste of foregoing reasons, For the will we affirm presentation time or needless of cumulative $80,000 compensatory damage award evidence. $30,000 for Kenrick David and the compen- satory damage Berkeley. award Juliette IV. Remittitur $50,000 punitive We will vacate the dam- Supermarket challenges Pueblo also ages granted plaintiff. award to each district court’s denial its motion for a argues jury’s remittitur and com-

pensatory damages awards Juliette ($30,000) ($80,-

Berkeley and Kenrick David

000) were excessive. grant remittitur,

In order to damages

this court must find the award grossly judi

“so excessive to shock the cial Edynak conscience.” v. Atlantic DIGGS, Appellant, Alfred B. Chambon, Shipping Inc. F.2d CIE. 562 v. (3d Cir.1977), (quoting Russell Cir.1958)) (3d Monongahela, F.2d America, Appellee. UNITED STATES of denied, 434 rt. ce No. 83-3143. (1978). “extremely L.Ed.2d An generous” upheld long award must be so Appeals, States Court of rationally as it is based. v. Pueb Walther Circuit. Third Thomas, Inc., Supermarket lo St. (3d Cir.1970); Argued Jan. Murray F.2d Morse, Fairbanks F.2d Decided Cir.1979). We cannot order remittitur damages even if “we would have found the considerably

to be less” had been the Murray,

trial court. 610 F.2d at 153.

The record reveals that Berke

ley injuries suffered from her fall and con

tinues to have both back and prob knee

lems were fall. attributed

Kenrick David born was with number problems, including

serious bruised shoulder, separation

swollen arm and left probable joint, facture of the elbow supínate arm,

inability pronate his left fingers

a lack motion deformi

ties of the elbow. The child was screaming, crying especially

excessive his mother had touch his arm him.

dress Other children taunted him and

nicknamed him the “Hulk” for the unusual

way he to hold his left arm. continues Campana Campana (argued),

Peter T. & Pa., Campana, Williamsport, appellant. Queen, Atty., David Dart Bernard (argued), Atty., V. O’Hare Asst. U.S. Scranton, Pa., appellee. BECKER,

Before GIBBONS Circuit ATKINS, Judges, Judge.* District THE COURT OPINION OF BECKER, Judge. Circuit Federal Rule of Criminal Procedure gives district court reduce upon a previously imposed sentence it crim- * Atkins, Clyde sitting by designation. Honorable C. United States Dis- Florida, Judge trict for the Southern District of defendant; states, gener- beyond

inal the rule also limit to decide Diggs’ ally speaking, that this reduction must take Gereau, accord Virgin Islands all, days if place, within 120 of a final n. but upholding the conviction. In the that two and a half was more than a us, is an case before from a reasonable time. district court denial a motion for collat- Third, we must decide whether Rule § 2255, eral relief under 28 U.S.C. the dis- 35(b), interpreted, so unconstitutional court, waiting trict after two and a half that it potentially deprives prisoners of a years, granted prisoner Diggs’ Alfred putative right to their petition have a for 35(b) motion, itself, and then reversed va- reduction of sentence considered cating grounds its order on that had lost district court. acknowledge While we jurisdiction by passage virtue of the provoking, particularly in light Diggs time. act claims last was error the Supreme Court’s recent decision in appeals. and Logan Co., v. Zimmerman Brush 455 U.S. major There are three issues before us. 422, 1148, 102 S.Ct. (1982), 71 265 L.Ed.2d First, we must decide whether the errors we find that no problem constitutional are Diggs cognizable asserted on sec- arises here. Accordingly, we affirm the motions, is, tion 2255 that al- whether the judgment of the district court. leged magnitude errors are of sufficient section, warrant relief that collateral under I. FACTS AND PROCEDURAL States, 424, see Hill v. United HISTORY 428, 468, 471, (1962), 82 7 S.Ct. L.Ed.2d 417 27, 1978, On December Diggs Alfred B. Diggs and whether the failure of to assert was sentenced the United States Dis precludes on the errors a direct trict Court for the Middle attack, District of Penn section collateral see United sylvania prison a ten-year term Frady, States v. follow (1982). jury his conviction by a for armed For the rea- bank § below, explained robbery 2113(a) (d) sons we hold that 18 U.S.C. & (1976). by Diggs requi- appealed errors asserted conviction, were He magnitude site his failure to raise this Court affirmed.1 This court’s mandate prior appeal preclude them on a not does was received the district court on Octo his section 2255 action. See United later, States Seventy-six days ber on (3d Baylin, Cir.1982). 696 F.2d 1030 26, 1979, filed, Diggs pro se, December a timely requesting letter-motion reduction Second, having found section 2255 to pursuant of sentence to Fed.R.Crim.P. invoked, have properly been we must deter- 35(b). At that time had incar mine whether the district court indeed year.2 Diggs’ cerated one letter-mo jurisdic- erred when ruled that it had lost tion, however, was not on served Diggs’ over tion Rule motion and was government; nor itwas docketed with the accordingly obligated to vacate its earlier July 22, until approximately clerk granting that motion. Notwith- 1982— and one-half two later. Its standing dictum in where United States v. Ad- donizio, prior to that abouts date are unknown. On July 22, court, (1979), L.Ed.2d arguably sug- a without conclusion, gests contrary hearing a govern hold that and without notice to the ment, granted district court Diggs’ had “reasonable time” amending his conduct, Diggs, "good, 1. United Cir. 605 F.2d 1197 tional which he claimed was if 1979) (Judgment Order). i.e., (4) attitude; perfect;” his he stated responsibilities realized his mistakes and sentence, letter-motion reduction of family, to his and believed that sentence reduc- judge, addressed the district court focused "strengthen family tion would ties and relieve (1) upon theological psychological and courses they urgently anxieties at time when are most (2) prison; had taken in vocational train- needed.” there; (3) ing programs he attended his institu- September propriety of the July as of tioned “time served sentence appellant’s denied Diggs’ sentence The court reduced 1982 order. 1982.” This order term, 18, 1983, year prison February rehearing and one-half to a three motion for originally imposed, and one-third of the habeas it would entertain but stated prompt release resulted petition corpus petition. Treating the prison. § pursuant to U.S.C. 7, 1983. court dismissed it on March notice first received The United States filed, se, pro notice Diggs then 35(b) motion Diggs had filed a rule repre- appointed counsel to appeal, and we reducing Diggs’ the order when it received sent him. government promptly sentence. On stay vacate that order.

moved to granted stay, the district II. THE AVAILABILITY OF 20, 1982, briefing after September and on RELIEF SECTION 2255 by his (defendant’s was submitted brief that government The contends 22, counsel), July court vacated trial nothing more application section original Diggs and reinstated order disguised Rule motion that than a order, the court vacating In sentence.3 previ- legal the same issues raised raises reasoned: justice ously. argues It that the ends of reluctantly The court concludes by permitting recon- would not be served filing passage of time between by of this same issue successive sideration 26, 1979 Rule 35 motion on December argu- application. conjunction with this 22, 1982, reducing July and the Order of ment, points that government out to time served as of the sentence pro- have raised his due could also inappro- renders the action taken September by appeal cess claim priate under the circumstances. order, suggests his and it believe, after consulta- court continues so should consideration of failure to do bar Officer, tion with the Chief Probation § filed four and one-half 2255 motion petitioner’s admission of his belated months later. offense, change of involvement in the his rehabilitation, attitude, potential for Error Magnitude A. Claimed family and his situation militate favor- However, ably early an release. v. Addoni Under United States is now a matter for the Parole Commis- 178, 185, 2235, 2240, zio, 442 U.S. 99 S.Ct. evaluate____ sion to (1979), and Hill v. 60 L.Ed.2d 805 468, 471, States, and his record discloses attorney copy (1962), were sent a of the order not all it is clear that Neither vacating the sentence reduction. pro in criminal errors non-constitutional attorney filed a notice of Diggs nor his bring prisoner an ac ceedings enable § appeal. relief; that 2255 for tion under U.S.C. provide a sub statutory provision does 4,1983, proceed- February again once On Rather, an error of law appeal. stitute for se, Diggs styled as a ing pro filed what at provide a basis for collateral rehearing, petition does not and a for a habeas, the claimed error constituted corpus ques- in which he tack unless writ of a misuse of government defendant’s motion was not in its brief that the 3. The contended jurisdiction power under Rule the con- was without court’s as a substitute for Board, grant by for reduction of sentence. parole to Appellant, sel, the motion the Parole but sideration by his trial coun- in a brief submitted preoccupation, because of inadvertnence [sic] impression the issue was one of first noted such other causes as would not conflict or District Court for the Mid- in the United States proper the courts’ use of its with Pennsylvania. urged He dle District reduce sentences. position equitable court to take Oppo- Memorandum in Petitioner/Defendant's provided has determined in its own the court Order, p. 4. Motion to Vacate sition to grant- delay is satisfied that mind and “a fundamental defect which re inherently raised at trial on appeal. In that case a complete miscarriage justice.” sults in Supreme Court extended the rule of Addonizio, 442 U.S. at Wainright S.Ct. at 2240 v. Sykes, 72, 97 Hill, (quoting 368 U.S. at S.Ct. at applies 471). us, therefore, The first issue before prisoners to motions state under 28 § 2254, is whether the allegedly district court’s er U.S.C. prison- motions federal § ruling concerning jurisdiction roneous ers U.S.C. Accordingly, over Diggs’ cognizable that, motion is the Court there held at least as to under section 2255. errors committed trial for which a rule procedure required of criminal contempora- that, if We believe the district court objection, neous the failure to make such ultimately indeed concluding erred contemporaneous objection and the failure jurisdiction it lacked over the Rule “plain to assert error” on would bar motion, a complete miscarriage of justice assignment of such error grounds would result. The error would not be one relief, for section 2255 unless cause for the would washed out the course of “procedural default” could be shown and subsequent proceedings. Rather, trial prejudice” unless “actual to the defendant wrongly subject whom individual could be shown to have resulted. court, exercising the trial arguably lawful it, As we read authority, Frady released from form of rested its use custo dy, prejudice” “cause and six and a half of imprisonment standard on two fac First, parole. course, tors. of precisely type This is of public was the inter error Congress finality for which est created section criminal convictions. 2255.4 While in one very sense the existence of section 2255 suggested this interest in fi

B. Procedural nality absolute, not to be Default that statute was not to used to eviscerate “orderly noted, As we Diggs did not procedures” by Congress established appeal the district court’s vacatur of its courts the conduct of criminal adju granting earlier order his rule motion. upon dications. A second factor relied Although we have found no pre case law Frady court was the existence of two cisely point, that, on we have no doubt procedure. first, rules of criminal The Diggs because rule appealed orig could have an 30, requires contemporaneous objection inal denial of his to rule motion for sentence, jury charges. second, erroneous reduction of The rule see United v. States 52(b), Dansker, “temper[s] (3d severity 581 F.2d of rule 69 30” permitting appealed Hence, by appellate could have courts to overturn the vacatur. grounds criminal convictions on “procedural “plain committed a default.” us, question therefore, certainly error.” It would undercut rule before is 30 procedural simple whether this allow default to error to be on bars raised a from collateral relief. section 2255 motion.5

United v. Frady, States The applicability of the Frady “cause (1982), 71 L.Ed.2d prejudice” procedural standard to de- a stands as barrier to occurring paradigmatic section 2255 movants faults outside the asserting object errors that could have contempora- been instances of to failures Procedure, governs can 4. There be little doubt that constitu- late the time for tak- cognizable tional claim section appeal, "plain an if mere error" could be course, provided, of that it has not been waived raised at on time a section 2255 motion. by Diggs' appeal failure to raise it in a direct hand, imagine it On other hard those vacating from the district court order its earlier (and perhaps convicted of crime incarcerated in grant of his Rule motion. prison) neglecting appeal bring "plain order to raise error” on a later section Although Frady rely court did not on this 2255 motion. point, might argued also be Appel- undercut Rule 4 of the Federal Rules contrary, panel reasoned Baylin rulings on to the evidentiary rulings or neously to equiva that, 2255 was the dispute because section charges jury has been Posner, writing for a mat Judge appeal direct on in the courts. lent of a Circuit, has taken panel con the Seventh and because the rules ters Frady to view of perhaps cerning sentencing the broadest are as well matters (albeit relying concerning with opinion proce an trial date. as the rules defined caution) Fra- “general language” of dure, apply.6 on the Frady did not failure held that the dy, the Seventh Circuit concerning the in Baylin Our appeal a consti- prisoner take an of a prejudice” stan- scope of “cause pressed at fully that was tutional claim motions has section dard on a relitigation that claim trial bars in our treatment section echoed showing section 2255 absent motions, prisoners state which accord prejudice. cause and See Norris v. United federal forum order to assert right to a (7th Cir.1982). States, 687 F.2d 899 claims. In Bea- federal constitutional their contrast, Circuit, interpreted Second has Patton, 700 F.2d 112-13 ty v. narrowly, Frady reading it as based more curiam), Cir.1983)(per we held that Wain- presence specific in that case of on Sykes Fay did not overrule wright v. procedure requiring of criminal con- Noia, 372 U.S. temporaneous objection. See on its facts and therefore Corsentino, 50-51 Fay bypass” “deliberate standard of (2d Cir.1982). involving in a case prejudice” rather than “cause and stan- challenge to al- section a sentence proce- governed the Wainwright dard of imposed unlawfully af- leged to have been failing appeal.7 default of dural held plea guilty, ter a the Second Circuit failure to prisoner’s mind, background in With this his rule motion based earlier denial of preju cause whether the now evaluate did not bar section same issue proce apply Diggs’ dice standard should relief. that it should default. We conclude dural with, not begin the To we do see how Our own circuit has also considered not. meaningfully distinguished post-trial can be applicability Frady to errors case Baylin. re too the error asserted procedure where no rule of criminal Here pro sentencing post-sentencing in quires contemporaneous objection. was and (3d ceedings, have said the rules of where we Baylin, United States v. 696 F.2d not as well marked. procedure of a are we ruled that the failure criminal Moreover, appear application object inclu it would criminal to to the defendant prong “cause” cause pre-sentence in of the sion certain material meaning in the con investigation challenge prejudice test has little report did not abar involving post-trial proceedings indi to text of on a section 2255 motion the inclusion they normally be gent litigants because will Citing Circuit’s material. Second Corsentino, of those schooled the assistance decision in but without without appellate proce- opinion of our the technicalities Judge benefit Posner’s forceful discussed, procedural of cause for a rule 35 more to the existence 6. As we decisions under hence, arguably generally subject appeal; applicability vel non of the are default than 2255 motion prejudice our statements section standard. cause and may Baylin's appeal have too amounted to first swiftly question jumped over the of whether Term, Supreme Harv. See The Court —1981 Baylin default committed ("Unless (1982) explicitly 224 n. 58 over- L.Rev. Frady prejudice standard of cause ruled, Fay by-pass” and the "deliberate standard appeal deci- to take an from the failed presumably to such as will be limited decisions allegedly concerning im- inclusion of the sion pursue appeal, choice deci- whether pre-sentence report. proper Also, in the material typically made the defendant as well sions concerning relative our comments counsel”). stage vagueness at the of the rules might argued proceedings be to relate criminal Finally, appear not appeal. period dures.8 there would jurisdictional time distinguishing proce may basis for not be extended.” 442 at U.S. consequences failing 189, dural be Supreme S.Ct. at 2242. If the petitions tween under sections 2254 and truly Court 120-day period held that Frady, at & n. 166-68 “jurisdictional” was limit on the Cf. 15, 15; 102 S.Ct. at & Beaty, 1593-94 n. 35(b) district court to decide rule mo at 112-13. Having F.2d ruled that tions, our prior granting cases the district properly claims were before the dis time” “reasonable after the 120 trict court a motion under section days to decide rale 35 motions would be we now turn to the merits of his claims. Janiec, overruled. See United v. States (3d Cir.1974) 505 F.2d n. 3 984-85 III. THE DISTRICT COURTS (sentencing authority court has to reduce a OVER THE JURISDICTION beyond 120-day period sentence where RULE MOTION the rule motion has been filed within begin We our discussion with an exami period), denied, such cert. 420 U.S. 35(b) jurisprudence. nation of recent Rule (1975). 43 L.Ed.2d 427 We first discuss whether United States v. Addonizio, We believe dictum, that because it is (1979), prior holdings L.Ed.2d 805 overruled Supreme cited statement of the Court may of this court that a district court de in Addonizio did not overrule Third Circuit cide motion for a “reasonable precedent granting the district court a 120-day prescribed by time” after the past “reasonable time” days.9 the 120 that rule. We hold that Addonizio did not Krohn, Fifth Circuit in United States Accordingly, overrule these cases. (5th Cir.1983), 1035-38 has then consider whether two and one-half carefully analyzed the Supreme de Court’s years is a “reasonable time” within the cision Addonizio. The court noted that meaning our precedents. We conclude jurisdictional nature lim not, no matter what the reason for it of Rule was not delay. case, Supreme repeated has Court ly impor cautioned that it “does decide

A. questions by cursory tant of law dicta in Addonizio, cases,” In United the Su- serted unrelated see In re Per stated, preme Cases, Court “Federal Rule Basin Area Rate Crim. mian Proc. 35 now authorizes district courts to 88 S.Ct. days

reduce a within sentence after it that manifest unfairness would result from imposed is or reading after has been affirmed on such a strict of the rule.10 We prejudice" Even if the “cause and standard of decide the motion. See United States v. Mendo Frady apply, suspect za, (5th Cir.1978) curiam; were to we (per 581 F.2d 89 in representation argu- surmount it. banc); His lack of Stollings, United v. States 516 F.2d 128 7 ably excuses his And Cir.1975).” default. he has (4th If view the in statements surely prejudiced by been it. trial Unlike the square holding, Gereau we are of course situation, evidentiary rulings where fine or byit bound to adhere to virtue of our Internal points jury charges may ultimately have little Procedure, Operating Chapter VIIC. Fortunate jury’s adjudication guilt to do with the innocence, however, ly, preceden we need not decide the errors made in will al- Gereau, which, authority tial of the in assertion always prisoner’s the the most affect duration of Addonizio, though issued after did not mention liberty. deprivation of case, the for we believe that the result reached by Gereau is correct. may already Virgin 9. We declared in so Gereau, v. 442 2 Islands 603 F.2d n. isIt clear that the Court in was Addonizio Cir.1979). speaks We said: "Rule 35 in terms addressing question the whether a district court being days, the court’s action taken within 120 35(b) jurisdiction lost over rule motion filed that, but it is well established once a 120-day period within the had because the court filed, may is the court motion retain not ruled on the motion out. when the clock ran jurisdiction for a of time to reasonable amount 246 that the chiefly limit to ensure in time serves analysis its Fifth Circuit’s

agree with the sentencing decisions in to reconsider dictum the entirety and thus hold on the district courts sensibly conferred prior hold overrule our Addonizio did not via rule Supreme the Court Congress and ings subject.11 overruling 35(b) for not become a tool does body, in after that Commission the Parole B. the Parole Commission consonance with that Addonizio did our conclusion Given Act, determines Reorganization the dis- prior holding that our not overrule criminal.12 date of the likely release beyond time” a “reasonable court has trict 35(b), we for rule days provided 120 case, court’s va the district In this half two and a decide whether must granting Diggs’ catur of its earlier decision was reason- delay in this case year involved respect 35(b) proper motion showed rule requires us determination able. This un power” concerns “separation for its rule purposes of examine the 120-day time limit. derlying the 120-day time limit. had, action on the by the time of sentence, ten-year his one-third of prior occa served suggested on a As we have Ferri, subject of Parole Commission F.2d v. sion, 686 see United States acknowledged (3d Cir.1982), cir action. The district and as other 154-55 incarceration, intimated, light Diggs’ continued see have likewise cuit courts reform, now a possible “is matter Kajevic, v. 711 F.2d States United — denied, U.S.-, to evaluate.” Parole Commission Cir.1983), cert. (7th that, acknowledged also Unit (1984); district court 35(b) motion, rule Krohn, previously granting the ed v. 700 F.2d States Pollack, with the Chief Probation it had consulted (5th Cir.1983); United States v. to believe that (D.C.Cir.1980); and had continued Officer F.2d of his involve Diggs’ admission Stollings, “belated attitude, offense, change of in the his rule ment (4th 120-day time rehabilitation, his fam potential manifestation of a simply is another early favorably for an militate ily situation underlying modern federal central fact suggests that release.” All of above power to determine procedure: criminal position to —and was the district court of an individual length and conditions Parole Commission second-guess the punishment dispersed between criminal’s did— un initially granted Under when judicial and executive branches. time” 35(b).13 The “reasonable 120-day der rule contemporary jurisprudence, Commis- spheres and the Parole Eighth of the courts reached the same re 11. Circuit has DeMier, generally issues Commission F.2d The Parole in United States v. sion. sult Circuit, Cir.1982). (8th parole several presumptive date within The Ninth 1205-06 (9th Smith, prisoner is incarcer- F.2d United States of the time months ated, Cir.1981) discuss yet has declined—albeit without limit of Rule also appeals dictum—to retreat from may the court of Addonizio start to run after may juris holding any ap- the district court retain dispose Supreme Court and/or peals beyond period. A con concerning the however, petitions diction trary the un- or certiorari viewpoint, expressed has been derlying process that can take conviction—a Kajevic, States v. Circuit in United the Seventh put year. thus A district more than a — denied, (7th cert. F.2d 767 second-guess position by Rule itself in the U.S.-, S.Ct. by reducing sen- harshness Parole Commission passage Addoni the concluded that which presumptive parole date. Per- below the tence approach integral part the in that of is an zio Advisory haps on Criminal Rules the Committee however, Kajevic Ultimately, the court case. problem. may wish to consider this that, under the case on the basis decided its circumstances, delay was un the district court's sug- dissenting opinion Judge of Gibbons The therefore, Technically, there is not reasonable. gests we should remand to determine presented here. yet split circuit on the really did the district court second- whether it guess or whether the Parole Commission observed, 35(b), may a flawed be is 12. Rule it 35(b) grant Diggs’ predicated Rule its initial of assuring separation this between vehicle tion, contemplated by argued 35(b) and Gereau is it could Janiec be that rule itself present- reasonable time to decide the issue right created an entitlement: the to recon- by ed the rule 35 not a license to sentencing sideration of decisions sentencing wait reevaluate the decision sentencing 120-day judge. jurisdiction- The light subsequent developments. in of limit, argument continues, al this arbitrari- of We do not believe Federal Rules ly deprived Diggs right of this any without of Criminal Procedure countenance the sort hearing whatsoever. We now examine 120-day in violation of the limit involved arguments. of each these Consequently, this ease. we believe the vacating district court was in correct Deprivation B. The Traditional Lib- granting order Diggs’ earlier rule mo- erty tion. Diggs’ argument If is that he has deprived liberty in IV. CONSTITUTIONAL CLAIM traditional by the application 35(b)’s sense jur rule A. Contentions case, in isdictional limits this we have little Finally, a position we are in to reach problem rejecting the constitutional at Diggs constitutional claim. The claim 35(b). tack rule We do not on believe the arises from the district failure to court’s provisions reconsideration of the Federal Diggs’ take action on rule motion isolation; Rules be can considered in rath until it was too late. As stated er, they part system must be seen as of a court-appointed attorney appellate —and determining initially least —at —the says all this is he on the matter —the claim period prisoner’s of incarceration. We can [Diggs] is that is not entitled to “[i]f say that a effectively solely of sentence reduction because sentencing makes reconsideration of deci delay, delay, and he had no control over the discretionary depriva sions amounts process it is submitted that a due violation liberty process tion without due of law. it, Diggs’ is established.” As we read hearing The convicted defendant has a with attacking constitutionality of rule 35 as extensive safeguards after applied. sentencing is determined. We think possible There are two views of “lib procedural safeguards provided for in or erty” “property” interest of which gener the initial determination Diggs deprived has ostensibly been without ally process suffice for due constitutional process. argued, It could be for exam purposes. 35(b)’s has, ple, jurisdictional that rule limit case, deprived Diggs liberty this C. The Rule Entitlement

the traditional sense. When the district ignored jurisdictional Analysis limit theory of the second under granted 35(b)motion, initially due process might rule which a violation be him; applied requires freed when it cor made out consideration the Su- rectly, III, supra part preme see him to recent in Logan caused Court’s Co., imprisoned.14 Alternatively, be or addi- Zimmerman Brush taking place appellant’s attorney events before the 120- We were advised day expired. suggestion argument is not with- oral the Parole Commission— If, taking following perhaps sugges- out force. all circumstances into ac- the district court’s count, ambiguous, per- parole supervision, we found record tion —released haps grossly subsequent filing if the limit had not been so some time of his notice exceeded, might persuaded Judge appeal. Gib- fact that Parole Commission position despite possible problems subsequently parole bons' released might requiring consequence analysis no result from and does not — Johnson, reasoning Diggs' effectively testify prior Mabry as to his claim. See moot us, U.S.-,-n. however, record is n. and behavior. For (1984). enough. clear L.Ed.2d (1982). in analysis Given the Zim Zimmerman Brush, Brush, Supreme argue Court ruled that rule could merman Employ of the Illinois Fair “liberty” that the failure a or “property” creates interest to schedule ment Practices Commission extinguished that could not be without due claim within a discrimination hearing on law, that, process just and as Illinois did filing process violated days process not confer the due when enabled who had filed individual rights of an destroyed property claims to be without (1) the discrimination where a claim of hearing whatsoever, any so here the feder- statutory right created a to sue state had government destroyed “property” al has or discrimination, (2) for state courts “liberty” by 120-day (plus placing the rea- definitively construed the stat had set of time) jurisdictional sonable limit on the dis- right foreclosing indi creating utes judge, operated trict which in this case has Employment the Pair vidual claims where detriment. failed to a hear hold Practices Commission of difficulties We a number with days. The rea ing on it within 120 Court notion that Rule itself creates a (1) by soned of action cause created “property” “liberty” subject or entitlement protected by property statute was the due process begin with, to due strictures. To clause, 428-31, process 455 U.S. 102 S.Ct. while we can accommodate ourselves to the 1153-55, (2) “procedures” whereby concept that a substantive entitlement cre deprived an could of such individual by law-making body ated can differ from matter of federal constitu property were a procedures by established the law-mak definitively not be tional law and could vindication, ing bodies see supra itself, 431-33, id. defined the state problems note have considerable 1155-56;15 (3) 102 S.Ct. at “a rule, understanding validity how a procedure deprives persons of their depends “procedural which na presents manner ... claims in a random ture,” product is the and which both unjustifiably high risk that meritorious action,18 judicial legislative can create a terminated,” 434-35, claims id. at will be at all. We have “substantive entitlement” 1156-57; (4) S.Ct. at that the state difficulty seeing more how even could “appreciable preserving had no interest” create a entitlement process created, substantive its statutes had id.16 “procedures” set additionally Pour broader than the out for Justices found that the protected that must be same its vindication and factors caused the statute to violate out “procedures” not set equal protec fourteenth amendment’s judiciary promulgating tion the rule but clause. rejection loss could not be 15. The Court thus reaffirmed its violation where the attributed sweet,” (or "positivist" legislature only “bitter with the Arnett state can do see statute —the 134, 154, Kennedy, 416 U.S. 94 S.Ct. carelessness—and so much where the (1974) (plurality opinion)) provided remedy in the event state of such which, approach under at least for negligent entitlements deprivations. law, existing procedures at common vindicating the entitlement define entitle- (rules (1982) enabling § 17. See 18 U.S.C. 3771 only ment and under which itself the failure procedure, act for rules of criminal which au- give procedures will a “due follow those process” rise to procedure, not thorizes rules of law). substantive violation—one is coincident statutory with the violation of the scheme creat- ing the entitlement. (1982) (rules promulgat- 18. See 18 U.S.C. 3771 § Congressional by Supreme subject ed Court fully that a statute The fact authorizes Plumer, disapproval); 471, Hanna v. cf. deprivation Logan, rather than the random 1136, 1143, (1965) L.Ed.2d 8 85 S.Ct. fully employee, act of a state unauthorized constitutional). (rules presumptively But cf. Taylor, distinguished case from Parratt Murphree, Mississippi Publishing Corp. v. 1908, 68 101 S.Ct. L.Ed.2d 242, 245, 90 L.Ed. 185 Supreme which the Court held that a (1946) (rules challenge going be- negligent prisoner's prison guard’s loss of hob- yond enabling legislation). by kit did not create a fourteenth amendment by judiciary adjudicating time), individual reasonable a or as of result rule Moreover, corpus “pro- 35(b)’s even if a of cases. divesting jurisdiction. Nonethe- theoretically cedural rules” could create a less, we for purposes argument concede pro- substantive entitlement to due that a may conceivably “mistake” made be protections, unlike cess Zimmerman (such this) in situations where district a Brush, provision under constitutional judge would have reduced the sentence if scrutiny major part here is not a jurisdiction, he had cannot,' but because body defining rules the entitlement deprived rule jurisdiction. has him of say sensed the citizen. To that rule important More than the fact that error rather than the Rules of Criminal Proce- jurisdictional from the limit of rule is generally, “property” dure creates the unlikely occur, however, is the limited “liberty” concept is entitlement a that must deprivation nature of the occasioned. pause. give us Brush, Zimmerman the failure of the Fair inquiries Because in this area tend Employment Practices Commission to con bog to descend into Serbonian of abstruse hearing vene within the 120-day limit metaphysics, arguendo we shall assume irrevocably Logan’s terminated Mr. ability that rule 35 indeed creates interest de to vindicate his claim of discrimination un serving pro process constitutional due der state law. The expressed by concerns analyze tections and shall now whether legislature in passing its anti-discrimi 120-day jurisdictional limit can be seen as nation statute and allowing private indi process Although due.” “the the issue is a viduals to seek enforcement had been one, jurisdictional close we believe that the Here, contrast, thwarted. the failure of compatible process limit is with due in this judge jurisdictional to act within the Specifically, situation. we believe the rule preclude time limit does not prisoner 35(b) jurisdictional limit creates considera gaining from earlier release on the based bly deprivation, less risk of an erroneous particularized considerations of hardship, any attempt factor which critical in repentance, and initial sentencing aberrant due, assay process El Mathews v. fill typical rule motion. The 319, 334-35, dridge, Parole Commissionis entitled to take these 902-03, and that be same factors into in making consideration cause, under the federal dis own length determination as to the of a persed sentencing authority, the depriva criminal’s incarceration.19 minimal, tion occasioned is id. Finally, we would note that Zimmerman concept of “error” little has distinguishable Brush this case meaning applied to motions for relief that Illinois had no rational basis for fore- 35(b). Such ad motions are closing the claims of discriminations vic- entirely dressed to the discretion tims where the Commissionfailed to hold a judge; can deny such hearing By contrast, days. within 120 Con- virtually motions for any reason or for no gress rationally could have decided that at all. reason See United States v. Felici concerning decisions continued incarcera- ano-Grafals, (D.P.R. F.Supp. put tion of a criminal were best 1970); Ursini, United States v. (D.Conn.1968). “experts,” hands of Parole F.Supp. Commission see it is Geraghty difficult understand how a United States Parole Com- “mistake” mission, (3d Cir.1983), can made as a judge’s result 719 F.2d 1199 failure to days (plus decide within 120 jurisdiction that a limit on the of the dis- McCall, 19. Whether the Parole Commission in takes fact ed States ex rel. Forman v. (3d Cir.1983). 709 F.2d 852 events, all these considerations into account or whether At all we decline to ad- simply proceeds mechanically rigidly impact finding rigidity dress what sufficient application guidelines post problems of its is an cur- create ex facto clause rently being explored by subsequent challenges process Middle District Pennsylvania jurisdictional 35(b). aas result of our remand in Unit- limit of Rule Moore, Cir.1978) Federal and 8A J. Moore’s decisions trict court over reconsideration 1968)), 35.02, (2d accomplish this desired n. 4 ed. necessary to Practice at 35-4 was II Indeed, authority. dispersal cert. denied sub nom. Matthews United might States, well be inconsistent with we think it 459 U.S. holding say that Geraghty (1983).1 majority’s

our recent L.Ed.2d 446 But the constitutionally the vest Congress logical. could principle is not application of this to de the Parole Commission with timely in filed Rule 35 motion was (and length incarceration termine the of an unfortu of 1979. Because December judiciary responsi that to divest the thus court, however, nate error of the district bility), say that this scheme could but to the court did not take action on the motion constitutionally implemented by lim July until two and one-half the courts iting jurisdiction the district delay later. A caused administrative 35(b). un under rule over motions of the court itself cannot constitute error Brush, there is a coun like Zimmerman purpose of delay” “unreasonable for the depri opposing interest the tervailing state otherwise, Rule 35. Were it the defendant the “property” “liberty” that vation of penalized: twice once would be because 35(b) may limit some jurisdictional failed to act on his motion for two times occasion.20 years; again and one-half and once because 35 relief. court’s own inaction bars Rule judgment of the district court will be court, Consequently, when as affirmed. here, timely fails to act on a defendant’s GIBBONS, dissenting: Judge, Circuit by reason of the court’s Rule 35 motion error, any ensuing delay cannot as a own I, II, IIIA the I concur Parts and delay” bar matter of law be “unreasonable However, majority opinion. I dissent from ring Rule 35 relief. part opinion of the is of most appellant: interest to the the affirmance of correct, however, majority surely court’s the district vacate any Rule 35 relief could not be based ruling. belated reduction of sentence that arose after the on facts and events Therefore, 120-day period. appropriate agree accepted I that one of the reasons instructions supposed disposition limit in Rule is to remand with for the time 35 is the “ lapse pecu Diggs’ Rule 35 motion to the fact that ‘after a of time the to entertain it is on facts and events ability liar of the court to determine sen extent that based expiration of the 120- gives way presumably greater tence to the that arose before simple disposi- This competence, knowledge, penal day period and of Rule 35. ” “second-guessing” of Ferri, any avoid authorities.’ 686 tion would United States v. (3d Cir.1982) beyond that for 147, 155 Parole Commission (quoting F.2d United Dansker, inherently provides. which Rule 35 itself 581 F.2d easily Although Diggs interpretation explicitly is not reconciled with does not make a "' equal protection argument fifth amendment against court's conclusion that “Rule 35 ... af this 35(b), precisely Rule opportunity would fail for fords the to reconsider the process argument same reason that light sentence in the further information fails: there is a rational basis for the "random deprivation" may the case which about the defendant or ’" 120-day (plus reasonable Ferri, presented in the interim." to him time) jurisdictional engenders. Logan Cf. (quoting States v. John 686 F.2d at 154 United 422, 438, Co., v. Zimmerman Brush son, (3d Cir.1980) 1148, 1159, (Black (1982) S.Ct. (2d Cir.), Ellenbogen, F.2d States v. mun, J., concurring). denied, cert. (1968)). appropriate L.Ed.2d 206 An reconcilia Interestingly enough, interpretation this analyses provide tion of these Advisory unsupported Com- Rule 35 is delays response Rule court which Rule its various amend- mittee Notes to the only post-incarcera motion can consider only appears Its derivation to be a fed- ments. prisoner to the tion conduct that extends interpretation of Rule 35 and eral common law day 120th of confinement. addition, the surmise of Professor Moore. simple adopt appro- than proceedings Rather lower court in such way however, disposition, priate majority deprive right forever him of his to have speculates that the district court “second- original district court rethink its sen- guess[ed]” the Parole Commission tence. Our already dismisses too initially granted Diggs’ Rule 35 many appeals by indigent and uncounseled court’s of its affirms the vacatur citizens because of errors point specu- 1982 order. There no presentation of their cases. It is saddening lating in this fashion. The district court is to see the story same when the obviously position ain better than this error is made the court and not predicated court determine whether it prisoner. arising 1982 order on after events respectfully I dissent. 120-day period appro- of Rule 35. The priate action is to remand to the district proper

court with instructions to make the so, By refusing

determination. to do this deprives Diggs opportunity

court of an for hearing any before the district court on

legitimate for relief Rule basis 35— e., grounds arising during

1. before 120-day period of the district —because UNITED STATES of America error. court’s own Whether or not this Appellant in No. 83-5233 sorry process, result is violation of due certainly required by is not Rule 35. Anthony J. COSTANZO. only appropriate action for this take would be to reverse the order Appeal Anthony J. COSTANZO denying March habeas relief and 82-5767, Nos. 83-5341/42 September 20, vacating the order of 82-5767, 83-5233, Nos. 83-5341 relief, grant of Rule 35 and remand to and 83-5342. proceedings the district court for consistent principle with the of law announced Appeals, United States Court opinion: delays disposi a court which Third Circuit. timely beyond tion to Rule Argued Feb. 1984. 120-day may grant relief if its July 26, decision is based on facts and events Decided 1984. 120-day period. did not arise after the This Aug. As Amended 1984. construction Rule unnecessary 35 makes Rehearing Rehearing and In Banc consideration of due process Aug. 27, Denied claim.2 ought to be This the least that we should all, Diggs.

do Mr. After

motion for a reduction in his sentence

slipped through some crack in the bureau- languished

cratic for two and years. I why

one-half see no reason go way out of our interpret

should join major- process I therefore do not IV of due Part violate when the fault of two and ity opinion, which reaches out to decide one-half of inaction is court’s and not process unnecessarily. permits Rule 35 I the defendant's. do understand grounds the district court's consideration argue grounds that the failure to consider aris- 120-day arising during peri- relief before or period pro- violates due after od in this case. There therefore no need to cess. contrary decide whether a construction

Case Details

Case Name: Alfred B. Diggs v. United States

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 26, 1984

Citation: 740 F.2d 239

Docket Number: 83-3143

Court Abbreviation: 3rd Cir.