In Re Edward Hanserd, Movant

(1975). However, transcript legal considered source been has never right with the to coun- knowledge associated rather, transcript of factual

sel; source case to the defendant’s specific information ap- preparation necessary in the fact, the United States

peal. recognized right to a trial

Court has no which there is

transcript situations California, Gardner v.

right to counsel. right therefore find transcript distinguishable a trial access to library. to a right of access law

from the

Moreover, in and Sammons we em- Smith

phasized that the defendants those cases voluntarily

knowingly waived the benefit library access a law when right Smith, right to

they their counsel. waived Sammons, 43-45; no present there is

601-02. In the indicating was aware

evidence Greene forego legal that his election to

informed forego an election to access included

counsel transcript. Accordingly, do not we

to a trial in- waiver of counsel that Greene’s

believe knowing voluntary waiver of his

cluded a transcript. a trial

right of access

IV. reasons, foregoing AFFIRM

For granting order court’s Greene

the district corpus of habeas and VA- writ

conditional stay of that order. The State

CATE our days entry of this sixty

Ohio has court’s comply with the district

decision

order. HANSERD, Movant.

In re Edward

No. 96-8051. Appeals, Court of Circuit.

Sixth

Argued Feb. Aug.

Decided Hanserd, Haute, IN, pro se. Terre

Edward briefed), preme announced its decision Bai (argued Court Jaegers Eric M. — U.S. —, KY, ley v. United Louisville, for Petitioner. (1995); April briefed), (argued and Moro Nesi Kathleen signed law the Anti- the President into Attorney, Attor- Office of the U.S. Asst. U.S. Penalty Effective Death Act of terrorism and MI, Detroit, Respondent. for ney, 104-132, No. 110 Stat. 1214 Pub.L. MARTIN, Judge, Chief NORRIS Before: “AEDPA” “the Act”]. [hereinafter MOORE, Judges. Circuit and courts, this circuit held that the lower included, sustaining un had been convictions n J., opinion MOORE, of the delivered 924(c) illegal. § conduct that der was MARTIN, C.J., joined. court, in which AEDPA, many provisions, among its 935), separate NORRIS, (p. delivered a J. rights pris places on the of new restrictions concurring in the result. opinion file more than one motion set oners to MOORE, Judge. Circuit or sentences under 28 aside their convictions Hanserd, prison- requires federal and Edward U.S.C. Movant file er, permission get permission appeals a second mo- of requests from the court his sentence under U.S.C. filing vacate Hanserd tion to before a successive motion. below, we the reasons discussed For a motion with this court on November filed necessary permission is that our authorizing hold seeking the district an order this case. to consider a second or successive court intervening upon 2255 motion based I. FACTS argues that decision. Hanserd now guilty pleaded to one Hanserd In gun-related conduct for conspiracy cocaine and to distribute count of prison years ten which he is to serve using drug of firearm two counts crime; replies that, government never a offense, in violation of U.S.C. trafficking AEDPA has even if that is the 924(c), respectively. 18 U.S.C. right eliminated Hanserd’s to seek relief un (Indictment); 18-19, 21-22 at J.A. at See J.A. jurisdiction der 2255. We have over this Case). Hanserd (Judgment in Criminal motion under 28 2255. See 28 U.S.C. thirty sentences consecutive received 2244(b)(3). U.S.C. conspiracy imprisonment on the years of years on each firearms II. five DISCUSSION count and years.1 forty at a total of J.A. charges, for presents primarily This case us with the affirmed the con of this court panel A35. question of AEDPA’s new restric whether unpublished opin in an sentence viction filing multiple 2255 motions “is the tion Hanserd, 1993 WL ion. United type provision govern 1993), Oct.21, denied, cert. Cir. arising Landgraf its before enactment.” 127 L.Ed.2d Prods., USI Film S.Ct. (1994). 1483, 1504, Because filed a motion to May any Congress expressed In clear intent under 28 U.S.C. vacate his sentence question, must the answer we drug conviction violated the arguing that Landgraf s default rules to decide resort to court Clause. The district Jeopardy Double question. We must first determine July year, motion in denied the legislation any makes whether the new appeal. Hanserd v. again affirmed on controlling changes to the law. We must WL 316491 Cir. whether, any light change, then decide 10, 1996). June law would attach applying the relevant new consequences to conduct antedat legal pending, two events appeal was While applying it ing passage such that the Act’s Washington that are critical occurred in 6, 1995, impermissible retroactive effect. the Su would On December this case. at special pervised release. J.A. 35-36. additionally imposed $50 1. The court years and five of su- each count assessment then, prisoners. comparison applications by how Id. begin, with habeas Id. We 18; proeedurally un- n. fare 213-14 & n. Hanserd’s claim would 268-69 & pre- post-AEDPA 217 n. at 271 n. der the law. id. at addition, prisoners because federal are often Corpus A. Habeas vs. Federal far incarcerated from the scene of their U.S.C. Motions crimes and from the courts that convicted them, po court and sentenced records and procedures for The two common federal tential witnesses would often be thou located illegal application relief confinement — examining of miles from the court sands corpus, a writ of habeas under 28 U.S.C. petition. habeas Id. 2255, are, §§ and motion under 268-69; id. at 217 n. 271 n. 25. although many ways, similar in distinct: therefore, following Congress the Judicial a a of 2255 motion is not for writ recommendation, Conference’s enacted corpus. Hayman, States habeas United v. largely to 205, 263, 2255 allow the court that im 220, 272, 342 U.S. 72 S.Ct. 96 L.Ed. sentence, (“[A posed hap rather than a court that a action] 232 2255 is not habeas GoveRning pened prison, to be near a to hear a collateral corpus proceeding.”). See Rules Proceedings 25, on that Id. at attack sentence. 217 n. 2255 For the United Section 25,272. 219, 271, generally 72 n. See S.Ct. [hereinafter States District Courts “ 210-19, 272; § 72 1 Advisory 1 id. at S.Ct. at 2255 Rule 2255 Committee Rules”] Advisory (noting Committee Notes. Section 2255 person seeking guilty plea involuntary cally, a is where the F.2d After tangible rights.” 881 at 232. knowledge lacks of one of the ele defendant final, the became their convictions required for conviction. Henderson v. ments McNally v. United held Court n. Morgan, 426 U.S. & 644-45 n.& 2257-58 (1987), the mail stat that fraud (1976); McCarthy, at intangible protect such at did ute issue 1173; Dewalt, 92 F.3d at States v. support therefore could not such rights and (D.C.Cir.1996) Henderson). (citing 231. Our a conviction. See Henderson, the grant In the Court affirmed to pursuant that Davis the Calla court held corpus of writ of habeas where the defen a to move under 2255 to entitled nans were (“We pleaded guilty had he dant not known when Id. at 230 their convictions. vacate second-degree murder intent applied that an McNally must be ret conclude offense, noting kill an of roactively that the Callanans’ mail fraud element the vacated.”). Bailey be must convictions McNally, analogous to and Callanan there nothing this record that can [t]here is controlling requires AEDPA unless fore is finding serve a substitute for either Compare result. United States different admission, trial, voluntary after or a (6th Cir.1996) Moore, 111, 112 F.3d intent. respondent requisite had the De- of narrower definition (“Bailey endorsed stipulate purport fense counsel did previ than this circuit had of a firearm ‘use’ fact; they explain him did not Callanan, with ously applied.”), plea that his would be admission of that an (“Although the lower federal courts had fact; he made no factual statement or words ‘scheme or artifice to interpreted the necessarily implying that he had admission enough to include schemes as broad defraud’ In it is such intent. these circumstances ‘intangible rights’ public of the to defraud impossible plea to conclude that his to the McNally statute as ‘limited in read the ... charge second-degree unexplained mur- protection property the scope to voluntary. der was ”). prisoners hold that We therefore rights.’ 2258. U.S. at 96 S.Ct. at See id. Bailey to advance claims. use (“A plea 645 n. involuntary ... [defendant] because such address effect of must also charge incomplete understanding an of the his motion. A vol guilty plea Hanserd’s below, case); Bailey par- means that the Rule Adviso As discussed judge tried who ("Because criminal, judge trial it ry never not that (6th Cir.1989).5 937, it law.... There since the date when became 943 878 F.2d Thus, say that engaged in it is not accurate to that Hanserd was no evidence ‘changed’ ... the law that any drug crime he carried Court’s decision substantive while previously prevailed in the Circuit police him on Sixth guns; when the arrested Rather, ... drugs. [the] case was filed. they found no when this two occasions these Riascos-Suarez, finally had opinion [the statute] decided what See United States Cir.) (“[T]he (6th always explained why the Courts 616, not meant and firearm was 623 cocaine, Appeals misinterpreted had the will of possession of ‘in relation to’ carried enacting Congress.”). the district When drugs found in the car with since no were — —, duty denied, accepted plea, it had a 117 court weapon.”), cert. U.S. (1996). And, 11 Rule of Criminal Procedure 136, al under Federal L.Ed.2d 84 136 voluntary, plea was both an admission' to ensure though guilty plea stands as 11(d), by supported Fed. R. P. predicate drug of he committed some Crim. 11(f). basis, P. 15, Fed. R. Crim. way sufficient factual 14 and it no fenses on June failed in light Bailey, the district court between those crimes indicates nexus indicate, duty- by no fault of its own—and merely carrying guns; it could —albeit 2255 guns a motion for relief stored the example, that Hanserd for States, Fontaine v. United appropriate. See drugs at his house. See Riascos- and the 1461, 1462, 36 Suarez, 411 93 S.Ct. (noting pre- U.S. F.3d at 622 73 curiam) (1973) use). (vacating (per L.Ed.2d 169 equated storage with Bailey precedent ("We 644, accept [the ... S.Ct. at 2257 charged with 96 government never 5. The competence of of the drug state’s] with characterization any in connection substantive offense counts, 924(c) the wisdom of apparent prisoner’s] counsel and of [the viola- either gives guilty charge posture plead us of second- Henry. of this case The their advice tion murder.”) by significance degree of this that Henderson is to address the We note no reason that it makes it peculiarity, other than to note in which the Court has case no means what, exactly, the guilty plea to determine more difficult does not bar collateral that a held predicate Blackledge were. offenses v. Alli on the conviction. attack 1621, 1633-34, 63, 82-83, son, U.S. 431 3, (1977); 97 S.Ct. at id. at 73 n. 52 competent counsel does 6. That Hanserd cases). Henderson, (listing 1629 n. 3 426 U.S. at this outcome. See affect United States Ri grounds. guilty plea on where other judgment under (6th Cir.) (on ascos-Suarez, McCarthy, voluntary); F.3d have been (holding following appeal upholding at 1173 on conviction direct 394 U.S. plea whose pre-Bailey guilty (Alford7) plea “a defendant because evi appeal direct of Rule 11 accepted “carry” in violation support conviction under been dence could — denied, opportunity plead 924(c)), be afforded the cert. prong of U.S. Peavy v. anew”); United —, Cir.1994) (6th (reversing dismissal Mitchell, United States v. See also F.3d remanding for district 2255 motion and Cir.1997) (4th (rejecting, on basis of prisoner should whether court to determine guilty government’s argument Rule guilty plea light to withdraw be allowed finding adequate fac plea is unassailable but violation). v. Tim Rule Only Eighth Cf. guilty plea). tual basis mreck, 780, 784-85, stand, contrary in a taken a Circuit has (refusing Henderson. did not decision that discuss § 2255 relief is question of whether answer Brooks, Bousley v. F.3d 288 & n. a technical Rule 11 viola to address available (U.S. (8th Cir.1996), petition cert. filed aggravating cir accompanied “other tion 1997) (No. 96-8516). But see Hohn Mar. cumstances.”). 894 & n. F.3d Cir.1996) (McMillian, J., (reject dissenting) of our sister circuits that have ad Most ing Bousley holding), cert. have reached this same this issue dressed filed 96-8986). 1997) (U.S. (No. May Because can to overturn conclusion controls, that Henderson we hold guilty pleas. Sever believe that followed convictions convictions, appeal guilty plea before the Court that a entered vacated on direct al have despite guilty pleas. does not bar a defendant announced and under Barnhardt, asserting later that his conduct See United States Cir.1996) by (allowing attack to have been within the shown 924(c).8 pre-Bailey guilty plea “an ex after scope of barring attack ception to the rule collateral Change Regarding C. The Law plea applies the defendant guilty when Successive Motions right not to haled into court all had ‘the Broce, felony (quoting charge’”) upon the of the Writ Old Law: Abuse 764-65); 574-75, 109 S.Ct. 488 U.S. jurisprudence, § the old 2255 Under Dewalt, (on appeal 92 at 1214-15 direct F.3d prisoner bring a a who wished vacating guilty plea of Rule 11 viola (or subsequent) claim in a second 2255 Henderson); v. tion, United States under a had to convince district court either motion (on Andrade, (5th Cir.1996) 729, 731 83 F.3d that the motion did not constitute “abuse appeal vacating conviction that fol direct the that he had made a “colorable writ” or pre-Bailey guilty plea); United States lowed McCleskey v. showing of factual innocence.” (7th Cir.) Abdul, 327, v. 75 F.3d 329-30 Zant, 495, 1454, 1470, 467, — 499 111 S.Ct. U.S. denied, U.S. —, (same), cert. 116 S.Ct. (1991). Schlup v. See also 113 L.Ed.2d 517 (1996). See also 135 L.Ed.2d 1085 Delo, 298, 314-15, 513 U.S. v. Chambers United 106 F.3d (1995). 860-61, § 2255 130 L.Ed.2d 808 Cir.1997) (2d pre- (allowing attack on 9(b) (allowing dismissal of motion Others, Rule including our Bailey guilty plea). proce “eonstitute[ ] found to abuse own, plea guilty a made that have indicated dure”). of these Hanserd satisfies both cri Bailey does not bar later attack before strictest,9 At its the abuse-of-the-writ conviction, upholding the conviction teria. while the Supreme that a Alford, the Court concluded habe- 400 U.S. v. 7. See North Carolina might vacate a conviction entered writ issue to S.Ct. L.Ed.2d 74-75, plea agreement. pursuant Id. at to a 82- 1629-30, 1633-34. note, too, Bousley conten- court's 8. We plea upset a the result of tion that it should Supreme Court this court the ignores issue in 9. Neither bargain the discussion of the .nor 63, 70-76, McCleskey applies Allison, standard held Blackledge McCleskey (1977), a itself involved ha- 2255 motions. in containing peals the motion either contain doctrine allows second motion certifies newly exculpatory the inmate can “show cause discovered evidence or to new claim where law, failing to in the first be based on “a new rule of constitutional [the raise issue prejudice made therefrom.” McCles retroactive to cases on collateral review motion] by Court, previously at 1470. that was key, 499 U.S. at. (and (2).11 2255(1), appealed) his unavailable.” When Hanserd filed first U.S.C. motion, newly it have been futile for him to There is no discovered evidence in this would support argue that and Hanserd does not claim that there his conduct did 924(c): argue does an conviction under had endorsed is. Hanserd law, “use” a new rule of but a broad definition of under statute nounced constitutional argument specifically rejected unconvincing. Bailey this is decid and had fact claim meaning appeal. nothing proper ed more than the his direct United States Han — 924(c). serd; Moore, at —, WL “use” in *6. See (“We granted clarify at 112. Hanserd has certiorari to therefore demon 924(c)(1)”). In meaning cause for his failure to raise the of ‘use’ under strated issue fact, Callanan, opinion the Court’s never mentions in his first motion. 881 F.2d at Thus, Furthermore, although opinion he has Constitution. made sufficient dimensions,12 have constitutional showing prejudice both of actual inno rule of did announce new constitutional appears it cence: the record he Vial, In re law. Accord guilty pleaded and was convicted for conduct (en Cir.1997) banc); is, Bailey, under not criminal. (9th Cir.1997) Lorentsen, the old therefore conclude abuse- cases). (collecting Under the AEDPA stan be enti standard Hanserd would of-the-writ dard, deny re we would claim in a 2255 mot tled raise quest to file this 2255 motion. ion.10 not, however, inqui This the end of-our 2. The New Law remedy ry. If [§ 2255] “the motion inadequate legality not al ineffective to test The AEDPA standard would detention,” prisoner may §a motion. the new of his then a federal such Under low corpus file a writ of habeas under 28 a second law §§ If appropriate ap court of U.S.C. 2244. 28 U.S.C. if the corpus petition; 2255 contains two sets of numbered we assume that same Section beas standard, cause-and-prejudice than the paragraphs; rather the citation is to second set. permissive one enunciated Sanders more 12. The Court's conclusion that evidence (1963), which support Bailey’s the record was insufficient case, applies to these motions. Because 924(c)(1) pre use conviction for McCleskey per he standard Hanserd meets the continuing sumably incarcera have rendered his standard, there and is no meets the Sanders force unconstitutional, charge had it been tion on that the here. United for us to decide issue reason Cf. necessary v. to reach such an issue. Jackson 1993) Flores, 231, (5th Cir. 234 981 F.2d 2790, 307, 2781, 322, Virginia, 99 motion). McCleskey § (applying to 2255 (1979) ("A challenge to a state 61 L.Ed.2d 560 ground any brought evi need to ad on the that the eliminates conviction discussion 10.This apparent to raise the fairly failure the Hanserd's deemed sufficient to have dress dence cannot be Hanserd, trial, 1993 guilt beyond issue see a reasonable doubt established that, 428907, 4, too, & n. is claim.”); at *6 Thomp WL states a federal constitutional McCleskey, prejudice. 499 excused for cause Louisville, City U.S. 80 362 son 493, Henry J. S.Ct. at 1469. See 111 U.S. (holding 4 654 L.Ed.2d Friendly, Collateral At Is Irrelevant? Innocence process convict “a violation of due to that it is Chi. L. Judgments, U. 38 tack on Criminal Rev. guilt”); punish evidence of his a man without (1970) (arguing procedural that hurdles 160 (8th States, United Hohn v. finality criminal cases for on desire based J., 1996) (McMillian, dissenting), petition Cir. give way “a defendant where convicted should 1997) (No. 96-8986). (U.S. May cert. filed error, showing an wheth a colorable that makes course, not, these itself establish did not, may producing the or be er 'constitutional' principles. man”) punishment of an innocent continued (footnote omitted). only raising his Bai relief available under 28 U.S.C. Hanserd

AEDPA bars motion, 2241.”). § § he could file a ley in a issue pursuant provision. to petition habeas Landgraf D. Retroactive Effect under United See Sanders 1068, 1076-77, in mind we now With this discussion (1963) (“A by prisoner barred res [federal] retroactivity analysis. Landgraf ’s turn to consequence as judicata seem a would analyze assump case first under remedy ‘inadequate or ineffective’ have an available, § 2241 and then tion that relief is proceed be § and thus entitled under contrary assumption. under a course, corpus where, of habeas — (citation omitted); Cohen v. applies.”) § May 1. If File a Petition Hanserd n. 12 & United Corpus Habeas Cir.1979) (allowing ha federal inmate use If claim in a raise § remedy corpus where inade beas then AEDPA’s petition habeas under — Turpin, Felker v. quate). See also motions new restrictions second — U.S. —, —, U.S. —, of, stan scope this case. The (1996) (“The new re for, same under either dard relief petitions [habeas] on successive strictions alleged provision, at where the errors least rule, judicata a modified res constitute a Sanders, sentencing in the court. occur corpus called in habeas on what is restraint U.S. at 1077. Cf. ”). writ.’ practice ‘abuse Jalili, Cir. States v. by not §A 2241 motion would be barred 1991) execution, (holding on successive motions the new restrictions imposition, rather must than sentence 2244(a) a Section allows dis- petitions. brought in habeas rather than repeat a to refuse entertain judge trict motion). Landgraf teaches a federal application for writ merely person new law that demands legality of such only appears it “if procedure right use a to vindicate a different by judge or been determined detention retroactivity concerns. seldom raises prior applica- States on the United court of Landgraf, 511 U.S. at corpus, except of habeas as a writ tion for Landgraf significant it Under in section 2255.” As discussed provided § 2241 the district court located near previous § 2255 motion above, Hanserd’s incarceration, place of Hanserd’s rather than for writ habeas cor- application not an him, originally the court sentenced and, any just exception pus; relief; adjudicate request would by AEDPA was inserted quoted, which “simply changes the tribunal that is statute 2244(a) 106(a), states explicitly affecting to hear the case” without Hanserd’s provi- supersede read rights. substantive Id. S.Ct. at 2244(b), Similarly, sions of (citation omitted). We therefore con §in 2255 limits to those similar contains provide § 2241 clude that because petitions, applies by its terms on successive motion, remedy equivalent re application or successive second quiring Hanserd use the former instead of 28 U.S.C. impermissible the latter would ret (b)(3). 2244(b)(2), 2255 mo- Landgraf. effect under roactive was, axiomatically, a rather than tion in filed district court and was application an May If Not File 2. Hanserd § 2244 2254. than or under 2255 rather a Habeas Petition that if Hanserd now conclude We therefore Conversely, if not file a ha- motion, may he filing 2255 barred from 2244, petition applying under then beas 2241. raise his claim Cf. restrictions to case to AEDPA’s new this States, 472, 106 F.3d 474 Chambers United § 2255 motion would “at prohibit his second (“We (2d Cir.1997) as- hold that consequences to events com legal ] new under 28 to available serting a claim relief tache enactment,” and would pleted before its a ‘second or successive’ 2255 is not U.S.C. impermissible retroactive ef sought therefore have prior petition(s) application where

931 270, 114 S.Ct. at the 1991 Amendments to Title VII of the Landgraf, 511 U.S. at fect. Act, compen Rights provided filed his initial 2255 Civil which 1499. When Hanserd motion, satory damages would have allowed him to hostile-work-environment law motion, suits, in a applied claim second as to misconduct that raise AEDPA, however, new 114 discussed above. Under antedated the law. 511 U.S. Applying the new statute would The not he not. S.Ct. Court held it did consequence legal though new apply, thus attach a severe even the conduct issue had filing would have thirty years to his a first motion: he before the new been unlawful right previously his sentence. Bur and lost law’s enactment could have (7th Cir.1996) Parke, supported damages. ris v. 469 an award of Id. at 282 banc). (en 35; Landgraf, & n. at 1506 & n. id. at (statute (Blackmun, J., dissenting). 1504 has retroactive 114 at 1509 impair rights party effect where “it would speculate The Court did not as whether acted.”); possessed when he Union employer consciously on the relied Pacific Co., 231 R.R. v. Laramie Stock Yards allowing against old law in discrimination 101, 102, L.Ed. Instead, 179 plaintiff.15 held that the the Court (“The [against applica rule retroactive provision applied new should not be justice, is one of statutes] tion of obvious doing significant attach a ad so would new or prevents assigning quality of a effect consequence legal verse to the conduct such they did not have or to acts conduct might have the defendant acted differ they contemplate per when were did not ently consequence. had he known of that new formed.”). Congress has not Because ex Id. at Under the old S.Ct. at 1506. Act have such pressed intent law, supposed inmates were file effect, apply AED- a retroactive we could 9(a); promptly. motions 2255 Rule way.13 PA in this Auth., Davis v. Adult Parole F.2d (6th Cir.1979); Desmond v. United attention government The directs our (1st Cir.1964) States, F.2d opinions in Roldan v. the Seventh Circuit’s (“[Applications for relief such this must (7th States, Cir.1996), F.3d United promptly.... will not even do be made It (7th 96 F.3d 990 and Nunez United prisoner any longer for a to wait than is Cir.1996), support contention be necessary reasonably prepare appropriate (i.e., consciously cause Hanserd did ”). moving known papers.... Had Hanserd reasons) strategic issue from omit this, change that AEDPA would and that his petition, he cannot said his first initial bar later mo would proceed rule must relied on the old interpre tion based on a new Court disagree. if at all. AEDPA 924(c), might he well have waited tation of Judge Roldan Easterbrook’s conclusion applying a to file that initial motion. Where analytic frame ignores Nunez both the a serious new ad Landgraf. new statute would attach holding of work and the consequence16 pre-enactment legal question in that was whether verse case14 central have, provision in cases which a does "in sister circuits without 13. Several of our contrary analysis, position filed his first 2255 motion before reached substantial applica applied AEDPA’ssuccessive there to ours effective date and his second AEDPA’s Lorentsen, (Hall, provisions. dissenting). See United States v. tion J. after." at 1199-1200 Id. 2255); (9th Cir.1997) (§ Den F.3d Cir.1997) Norris, ton (habeas); Indeed, issue the one that drew Singletary, F.3d Bush v. Landgraf, U.S. at 296 n. dissent. See curiam) Cir.1996) (habeas); (per Liriano v. J., (Blackmun, dissenting). n. 3 at 1509 (2d Cir.1996) 95 (§ 2255). are, curiam) (per These imagine a It be hard to defendant course, authority; persuasive since none of consciously arguing relied it had such a suit retroactivity, not find we do them them discusses liability employees its permitting on its limited Vial, 115 F.3d persuasive on this issue. In re engage in unlawful sexual harassment. (4th Cir.1997) (en banc), 1198 n. 13 parties specifically because the had reserved the issue legal attach new new statute must 16. That the dissenting judges would it. The three not raised pre-enactment conduct consequence to the sponte and would the issue sua have reached given distinguish hold, examples in foot- the today, gatekeeping serves to we that the new do Cir.1991) cases). party might (listing that the affected Sixth Circuit Simi conduct such law, differently light in of the new larly, have acted the Court’s familiar refusal apply us not to the new Landgraf instructs questions not examined below makes address law.17 say that have us loathe Hanserd should petition for Bailey the issue in a cer raised suggests that States also The United Holly Corp. Farms tiorari. NLRB presidential pardon availability of a the ,U.S.-,-n. S.Ct. the applying new statute would means that Finally, n. will .we still, rights impair (assuming, not immediately penalize Hanserd for not grant a court could not habeas that district court filing a second 2255 motion district 2241). unpersuad are petition under We announced, part because presidential when was right No one has a ed. charged AEDPA Dep’t he cannot be with notice of Binion v. United States pardon. of (9th Cir.1983). Justice, (by until date time it its enactment (guidelines §§ seq. late), 1.1 et and part C.F.R. the was too courts clemency); Herrera procedure for executive filing have never condoned one such motion Collins, 506 U.S. S.Ct. short, In pending. another is while (1993) (“ ‘A pardon procedure the correct under the old followed ....’”) grace (quoting act United an of law, against not hold him. will Pet.) (7 Wilson, Finally, government points the out (1833)). To eliminate Hanserd’s L.Ed. 640 Felker, disposed petition Court in when it of imprisonment, leaving right his writ, application er’s noted that neither presidential clemen hope him with a faint require “satisfie[d] of claims the Felker’s Furthermore, impair right. cy, would provisions of of the relevant the ments is inclined to we doubt the President — —, Act.” at at U.S. 2341. surrounding every facts the language dispositive. This is far from Felk a claim that he cannot prisoner who asserts petition er’s at abuse the writ. Id. potential The availabili raise under 2255. then, —, (noting the clemency, does not 116 S.Ct. at 2337 court ty of executive opinion. change appeals had determined that the our have been under the old and would barred disagree govern also with the —, standards); new id. at 116 S.Ct. at that Hanserd should have position ment’s (noting that Felker’s “do not claims during his claim to raise tried materially differ numerous other claims decision in window between Court’s brief petitioners”); made successive habeas id. AEDPA’s enactment. The that case J., at —, (Stevens, con suggests that Hanserd should government curring). new Where old law appeal supplement his tried have result, lead to an identical there is no need to our this court. Given first retroactivity analysis conduct a because the appellants admonitions oft-repeated any new law not attached new conse attempt to raise new on issues quences pre-enactment upset conduct penalize failing him appeal, we will expectations. Landgraf, 511 settled U.S. so, exceptions make if we sometimes even do 269-270, Furthermore, at 1498-99. Broadcasting Co. v. the rule. See Taft open question 243-44 left of whether Court United thereby Landgraf. n. statute of limitations and barred the suit. See 511 U.S. note oí disagreed, Id. at Court at 1499 n. holding applying to bar the new statute such impermissible would ef- have retroactive opinion in States v. Justice Brandeis’s Nothing Id. at 46 S.Ct. at 183. in the fect. Louis, Ry., 270 & T. S.F. St. suggests opinion delayed that the railroads had (1926), Landgraf, cited in L.Ed. 435 Thus, strategic although filing suit for reasons. 114 S.Ct. at 1501-02 n. also 274 n. law conscious reliance an old is-relevant in plain- that case the supports conclusion. suggests party that a brought against that it acted the United had suit tiff railroad regime Claims; differently government’s under the old than under the the Court States in law, passed it has never been touchstone after the was that a statute sole defense retroactivity analysis. applicable action accrued had shortened Fortunately, provided applied Congress the new even to its or not restrictions jurisdiction enacting Congress § to a writ of habeas original issue our answer. — Felker, at —, corpus. preference clear expressed a that federal (“Whether by or are bound at 2339 not we provision, prisoners use that ha rather than restrictions, they certainly inform our these confinement, corpus, beas to their original petitions.”). consideration habeas possible.19 single post-AEDPA if Hanserd’s purport in Felker to de The Court did not pursued attack should therefore be under gatekeeping the restrictions cide whether requires § the new a differ 2255 unless Act applied arising to before should be above, ent result. As discussed AEDPA’s enactment, not assume AEDPA’s and we will text, through Landgraf, the seen lens of does that it did so sub rosa.18 require a different Nor is allow result. ing position inmates to move Applies E. Which Provision § 2255 incompatible relief under with Con enacting intent AEDPA. The gress’s analysis This leads to an odd conun- us large part prevent AEDPA is in intended to explicitly drum. Section states continuing to state and federal inmates from prisoners habeas cor- federal resort to challenges the federal to flood courts with if, if, pus only § and 2255 relief is inade- put stop their confinement and to to what analysis quate. of the AEDPA under Our many of multiple see as the use federal habe Landgraf contrapositive con- leads us corpus petitions delay the execution of as § 2255 mo- clusion: Hanserd file new holding those sentenced death. Our the old standard tion under abuse-of-the-writ means that federal inmates will have one if, if, § 2255 obtain- bars him from post-AEDPA apple, bite at limited fur § 2241. ing relief in district under court ther, one, prisoners who motion filed a may apply for but relief under enactment, by both, AEDPA’s the old abu provisions; question is before of these per standard.20 which one. seof-the-writ One Sims, sentencing guidelines. Similarly, See United our recent decision in In re Cir.1997), (6th Clements, a second F.3d 45 involved Cir. that would have constituted abuse 2255 motion 924(c) 1996) (direct appeal). If Hanserd’s law, the new the writ under the old writ, we can are vacated on a habeas convictions solely on that existed before motion relied law sentencing authority that find no would allow the id, at 47 motion had been filed. See the first modify reopen sentence the case to court (noting that second relies on part drug charges, imposed which was on the Sentencing Guidelines and on amendment agreement guilty pleas plea of a included Munoz-Realpe, 21 F.3d 375 924(c) 3, supra. counts. Sec the two See note Sims, 1994)); 92-CR- United States v. No. Cir. contrast, allow the court tion would 1995) (E.D.Mich. May (filing of first 80647-1 [his] ... correct sen motion). [Hanserd] "resentence court therefore Sims gatek- may appear appropriate.” 28 U.S.C. occasion to discuss whether the tence as no eeping which provision should to cases in 2255. See Andrews United did law leads to a result than the new different 1239-40, system. old (1963) (remanding resentencing under 2255). respect, more consis In this it seems Congress to enact that led 19. The considerations question both with our treatment of tent entirely applicable to this situation. 2255 are Congress’s and with intent that the direct review similarly pro situated inmates If Hanserd uniformly penalize Sentencing those Guidelines corpus, very ceed under habeas inefficiencies drugs firearms are involved both with who Congress will occur: led to enact large prisons proceed will be rather located near allow inmates to courts motions, witnesses and with such corpus. inundated habeas See Koon United than - U.S. -, -, have thousands of will to travel court records 2043- hearings, these miles to the situs of habeas (1996) (noting Congress judge with the before a unfamiliar would be held guidelines hoped promote unifor would Furthermore, II.A, supra. case. See Part sentencing). mity in Bailey requires reversal of held that where 924(c) proper appeal on direct convictions old imply this that the 20. We do not mean court remedy the district is often to remand for filing a prevent prisoner from doctrine between whether connection to decide allows, if such a that the new 2255 motion law possession drug trafficking and his defendant’s possible. situation is warranted a enhancement a firearm sentence permission not needed because AEDPA’s Bailey claim with a colorable prisoner applied pur flood, gatekeeping provision cannot be opportunity little offers hardly a Landgraf, will suant to this court so indicate therefore hold that a federal delay.21 We proper to the satisfy requirements the motion the new will transfer must pursuant 1631. only if he filed district court U.S.C. § 2255 a 28of U.S.C. R.App. 22(a). permis Motions for April motion on or after § 2255 P. previous Fed. Cf. categories— of these signed into sion that fall neither AEDPA was law. the date i.e., both under those that would barred previous 2255 motion was As Hanserd’s are date, law and those that he does not need to the old and the new that filed before April by previous mo- motion filed after a second barred a new standard file meet this by of this be denied order 1996—will tion.22 permis requesting If motion

court. either motion to sion or a second or successive III. PROCEDURE erroneously filed dis vacate sentence is court, transfer trict that court should unnecessary to avoid confu In order under 28 motion to this court U.S.C. delay, proper outline the we will sion and Sims, In re Cir. See for federal inmates who wish to procedure 1997). § 2255 subsequent motion. file a second or to file second succes Inmates who wish to vacate sentence should first sive motion IV. CONCLUSION requesting permis court

file a in this above, we hold regard §§ For the reasons discussed sion under U.S.C. permission not need our first motion to vacate sen that Hanserd does less of when the 924(c) convictions under 28 If the successive motion is tence was filed. provi accordingly transfer this gatekeeping U.S.C. 2255. We proper under AEDPA’s dis District Court for sions, permission to file a motion case to the United States Michigan to granted, the statute of the Eastern District of allow with trict court will be vacate, aside, per file a set while motion for Hanserd to motion to tolled limitations § 2255. this court. See U.S.C. or correct his sentence under mission is before 2(a). holding of this case 2255 Rule If under case)....”). —, post-AEDPA pre- at 2070 standards id. 21. Because Cf. similar, J., ("Based (Rehnquist, evaluating petitions dissenting) [a] are so C on weak successive Congress likely few cases—other than those inference ... Court concludes will there impliedly Chapter apply which the difference arising intended for 153 not —in 924(c) Also, on, go apply conviction is not pending our since cases. I would matters. death, arising by Congress ordinary retroactivity principles, cases punishable no would.”) delay any unlikely execu- to result in To the extent seem doubt assumed that merely it tions. that Lindh is at all relevant to this case amplifies Landgraf holding that a "clear state s required apply a for a mandate to [is] ment decision in v. Mur recent Lindh Court’s way.” disfavored retroactive Id. at statute — U.S. —, 117 S.Ct. phy, added) —, (noting (emphasis (1997), analysis in does not affect our this Congress’s explicit that even statement only the text of AEDPA held case. Lindh Chapter provisions apply pending 154’s chapter provisions “the new indicates provisions not indicate that those should be generally only apply Code] 28 United [of applied so as to have retroactive effect under the Act became effective.” Id. after to cases filed Landgraf). id. at — n. at —, the statute is 2068. Because (”[C]ases truly n. 4 has found where Court inapplicable by to Lindh's its terms adequately by enactment, authorized 'retroactive' effect AEDPA’s the Court was filed before statutory language that was at —, statute have involved Landgraf id. issue. See did not reach the only interpret so clear that it could sustain ation.”) one ("Although Landgraf s default at 2063 (citations omitted). holding The Court's deny application when retroactive rule would result, Chapter generally applies to cases construction otherwise other effect would imply ap does not that it filed after enactment possibility even the to remove rules thereby plies (as a retroactive effect rendering statutory provi where retroactivity inapplicable particular result. wholly sion NORRIS, Judge, ALAN E. Circuit

concurring. panel in the result reached

I concur

majority, that Hanserd should to the extent allowed to file his motion. rel., America, ex

UNITED STATES McKENZIE; Mary

Mary McKen- C. C.

zie, Plaintiffs-Appellants,

BELLSOUTH TELECOMMUNICA-

TIONS, INC., doing business as South Telephone Company, Bell De-

Central

fendant-Appellee.

No. 96-5268. Appeals,

United States Court

Sixth Circuit.

Argued Feb. Aug.

Decided Notes that “the relief vacate, additionally gives flexibility the court more in custody from federal files motion to aside, sentence, fashioning remedy by authorizing it to or rather than a “va set correct is, cate, sentence”; set aside or correct the corpus”). petition for habeas Section 2255 rather, remedy possible in remedy habeas writ tradition statutory Congress given corpus ally scope. been a more limited supplant enacted to habeas for federal 215, Advisory 4 2255 Rule Committee Notes prisoners. Hayman, 342 72 U.S. (“According report to the Senate committee provision at 269. The reasons for the S.Ct. purpose of the bill was make the clear. at the time a court could are Because part corpus petition only proceeding of the criminal action so grant a habeas could the applicant, the court resentence or prisoner geographical jurisdiction,2 within its (A 2241(a), judge him a new (d); Hayman, grant presiding trial. 342 U.S. 28 U.S.C. does corpus over a habeas action not have 72 272 the small number of S.Ct. at major powers.)”) (quoting Developments happened these district courts that to have jurisdictions were, Corpus, prisons the Law —Federal Habeas 83 Harv. federal in their (1970)).3 enactment, prior swamped with L. Rev. n. 360 2255’s Supp.) (noting that 2255 rules 2. The Court has since held that a feder and 1996 and its may grant long appropriate virtually any court a habeas writ so as the al "authorize relief in the juris prisoner’s case”), is within the court's custodian particular of the with circumstances Court, diction. Braden v. 30th Judicial Circuit Randy Hertz, 2 S. Liebman and Federal Habeas James 1131-32, 484, 499-500, S.Ct. 93 (2d §§ Corpus 33.1-33.4 Practice and Procedure (1973). Wright L.Ed.2d v. United ed.1994) remedies); (discussing Raley v. habeas Parole, Bd. 557 F.2d Cir. Parke, (6th Cir.1991) (assert F.2d 1977) (“The power of courts over habeas federal ing authority federal court has no habeas custody prisoners in has been confined federal hearing); evidentiary state court to conduct order Congress ... those district courts within Brower, (3d Barry Cir. v. 864 F.2d 300-301 jurisdiction the lo custodian is whose territorial 1988) grant (modifying district court’s of habeas cated.”) Braden). (citing custodian for habeas court not have "[a] relief because does director, prison rather purpose is the warden directly process power to intervene in the statutory ultimate au than the executive with incorrectly subjected tribunal which has [state] (3d thority. Maugans, 24 Yi custody petitioner respondent to the Cir.1994); Chatman-Bey Thornburgh, official.”). Although a federal modifica court's (D.C.Cir.1988) (enbanc). 804, 810-11 judgment court's tion of another federal not raise the same federalism concerns that 3. Although years taken the courts have recent do, comity involving prisoners state inter-district approach type available a broader to the of relief original practicality suggest sentenc corpus, it is federal still true in range habeas ing positioned to is better reevaluate court possible is remedies prisoner’s conviction sentence. See Larry Compare federal than that under habeas. broader 4(a) (1981 (motion presented 2255 Rule W. Yackle, Remedies Postconviction usually plea untary intelligent guilty Claims are B. Whether attempts to on Collateral later Reviewable forecloses resulting judgment; plea serves not Review charged in the indict admit the conduct is incarcer who A guilt to concede of the substan ment but also later that is held not to be ated for conduct Broce, 488 tive States v. U.S. crime. United through his freedom obtain criminal4 757, 762, 2255. Davis United (1989). 574-75, But see id. 333, 346-47, States, U.S. However, (noting exceptions). 764-65 “be (1974); Callanan v. L.Ed.2d 109 guilty plea an of all the cause a admission 231-32 United charge, criminal it can elements of a formal denied, Cir.1989), cert. voluntary truly unless the defendant (1990). L.Ed.2d 946 Calla possesses understanding of the law indistinguishable particular nan McCarthy relation the facts.” respect. Defendants at bar in this the case 1166, 1170, son, con father and been in that Broce, Accord the mails defraud using victed of specifi at 762. U.S. at More Michigan certain “in and citizens State

Notes

Notes ticular conduct was Committee there is obvi thoroughly familiar with when that decision was in effect decriminalized advantage giving him the ous administrative was announced. whether there are opportunity to decide first grounds motion.”). granting us, then, carry intelligent On the record before stand as an plea that his cannot 924(c) prong support either of the cannot guilt.”). admission of Hanserd’s convictions rest on convictions. Here, there is no indication guilty violating prong pleading the use necessary Bailey between connection 924(c) and, plea was not because guns drug offense and his existed. understanding of the adequate made with colloquy that Hanserd plea The indicates law, voluntary it was not and does not bar a carry guilty using, rather than to pleaded 924(c) conviction.6 collateral attack on his during drug ing, a firearm offense. J.A. yet to decided when Although government argues that That plea orily upheld entered his serves should be Hanserd the convictions conclusion, carry strengthen because it makes charged under the indictment Hanserd 924(e), court, counsel, it clear that the and accused prong as the use as well operating all under what we now know agree. charged The indictment that were cannot 924(c)’s (June reach. 14 and 15 of was a too-inclusive view of on two occasions 1988) scope “carried, gun overly interpretation broad possessed” used 924(c) wrong as it drug trafficking was as before “during and in relation to crime, is, change did not the statute’s possession with intent to dis is now. 924(c) has al meaning; it clarified what the distribution of controlled sub tribute and (Indictment ways its enactment. See Rivers meant since J.A at 21-22 Counts stances.” Inc., 6). Roadway Express, a conviction under order obtain 12, 128 1510, 1519n. L.Ed.2d 924(c), prove the n. government must (“[W]hen this Court construes drug specified in the indict predicate crime Sims, statute, explaining understanding of it is its ment. United States continuously Cir.1992); Henry, has meant what the statute

Case Details

Case Name: In Re Edward Hanserd, Movant

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 25, 1997

Citation: 123 F.3d 922

Docket Number: 96-8051

Court Abbreviation: 6th Cir.