Case Information
*1 Before WILSON, KRAVITCH and ANDERSON, Circuit Judges.
PER CURIAM:
Leon Swichkow appeals the denial of his third motion for an extension of time to file a 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence, as well as the later dismissal of his § 2255 motion on timeliness grounds. After a thorough review, we affirm in part, and vacate and remаnd in part.
I.
In 2008, a jury convicted Swichkow of multiple counts of wire fraud, mail
fraud, money laundering, and securities fraud. We affirmed Swichkow’s
convictions on direct appeal, and the Supreme Court denied his petition for a writ
of
certiorari
on January 9, 2012.
See United States v. Wetherald
,
On October 23, 2012, before the expiration of the limitations period, Swichkow sent a pro se lettеr to the district court, requesting a six-month extension to file a § 2255 motion because he had been experiencing medical complications over the past year. The district court docketed Swichkow’s letter in his criminal case, and later denied his request. Specificаlly, the court explained that it lacked the authority to consider a request to extend the limitations period before an actual § 2255 motion had been filed, nor could it treat Swichkow’s letter as a substantive habeas motion because he failed to include any allegаtions sufficient to support a claim for relief under § 2255. Swichkow did not appeal this ruling. Instead, on January 3, 2013, also within the limitations period, Swichkow moved for a second time for an extension, again stating that multiple health issues had impeded his ability to file a timely § 2255 motion. On January 8, 2013, Swichkow filed a third request for additional time. These additional requests also were docketed in his criminal case. In an order dated January 14, 2013, the district court denied Swichkow’s second motion for an extension.
On January 24, 2013, fifteen days after the expiration of the one-year deadline and before the district court could rule on his third request, Swichkow filed his § 2255 motion. In a single order dated July 10, 2013, the district court denied Swichkow’s third motion for an extension of time and dismissed his § 2255 motion as time-barred. The court, however, granted a certificate of appealability (COA) on the following issue:
Does a district court have jurisdiction to grant a motion for an extension of time to file a petition to vacate a conviction in a criminal case pursuant to 28 U.S.C. § 2255 before the petition has been filed, or where the motion for an extension of time does not contain allegations sufficient to support a claim for relief under 28 U.S.C. § 2255.
Swichkow then filed a single notice of appeal, noting his desire to appeal from the district court’s “final judgment” entered on July 10, 2013.
II.
As a preliminary matter, we must determine the scope of the issues properly before us in the instant appeal. In his appellate brief, Swichkow’s sole argument pertains to the district court’s dismissal of his § 2255 motion as untimely. Specifically, he asserts that his significant health problems constituted extraordinary circumstances that would justify equitable tolling, and that he exercised due diligence in pursuing his § 2255 motion. The government responds that the issue of equitable tolling is beyond the scope of the COA, and urges us to vacate the district court’s order granting a COA as improvidently granted and remand for re-issuance.
The right to appeal from the denial of a § 2255 motion to vacate is governed by the requirements found at 28 U.S.C. § 2253(c). See Slack v. McDaniel , 529 U.S. 473, 478 (2000). Under the AEDPA, a federal prisoner must obtain a COA in order to appeal the denial of a § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B).
To the extent that Swichkow intended to appeal the denial of his third
motion for an extension to file а § 2255 motion, he did not need a COA to proceed
on appeal.
See Woodford v. Garceau
,
In this case, although Swichkow lodged multiple motions for an extension in
the district court, he never artiсulated any of the claims for relief that he intended
to raise in a § 2255 motion. In its order denying Swichkow’s first motion for an
extension, the district court clearly advised Swichkow that it lacked the ability to
entertain his request absent a proposed § 2255 motion, or any indication of the
substantive сlaims or challenges to be included in Swichkow’s habeas action.
See
Stewart v. United States
,
We have yet to address whether a district court retains jurisdiction to rule on
a motion for an extension of time to file a § 2255 motion in instances where the
request does not contain allegations supporting a claim for habeas relief. A few of
our sister circuits, however, have considered this issue. In
United States v. Leon
,
In a recent decision, however, the Third Circuit rejected the holding in
Leon
and concluded that a district court retains jurisdiction to rule on a defendant’s
motion for an extension of time before the actual § 2255 motion is filed.
See United States v. Thomas
,
We find the reasoning of the Second Circuit to be persuasive and in line with
our existing caselaw that treats a hаbeas proceeding as a separate civil post-
conviction action rather than a continuation of a criminal case.
See, e.g., United
States v. Jordan
,
Here, because Swichkow had yet to file an actual § 2255 motion at the time he sought an extension to the limitations period, there was no actual case or controversy to be heard. Thus, the district court properly concluded that it lacked jurisdiction to consider Swichkow’s requests for an extension of time to file a § 2255 motion absent a formal request for habeas relief. Accordingly, we affirm the denial of Swichkow’s third request for an extension to file a § 2255 motion.
III.
This, however, does not еnd our inquiry. When a district court denies a
habeas petition on procedural grounds and does not reach the petitioner’s
underlying constitutional claim, the petitioner must show that (1) “jurists of reason
would find it debatable whether the district court was correct in its procedural
ruling”; and (2) “jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right.”
Slack
,
As discussed above, the district court issued a COA limited to the denial of
Swichkow’s third motion for an extension of timе to file a § 2255 motion.
See McKay v. United States
,
After Swichkow filed his § 2255 motion on January 24, 2013, fifteen days after the expiration of the one-yeаr limitations period, the district court ordered Swichkow to respond to the timeliness issue. On February 27, 2013, Swichkow responded that he had filed multiple motions to extend the limitations period based on his health issues. Swichkow also attached a copy of a form addressed to the Burеau of Prisons (BOP), dated February 15, 2013, requesting a copy of his medical records for the past 60 days. In a response dated February 20, 2013, a BOP staff member told Swichkow “[y]our name has been placed on the waiting list.”
On April 25, 2013, the magistrate judge issued a report recommending that Swichkow’s § 2255 motion be dismissed as untimely. Additionally, Swichkow failed to demonstrate that his medical issues were sufficiently debilitating to constitute extraordinary circumstances that would justify equitable tolling, or that he exercised due diligence in pursuing § 2255 relief during the limitations period. The magistrate judge expressly highlighted that Swiсhkow had failed to provide any evidence to show how his health issues had impeded his ability to file a timely § 2255 motion.
In his objections to the magistrate judge’s report, filed on June 20, 2013,
Swichkow attached a copy of his medical records, and further explained that he
had not received a copy of the records until June 5, 2013, over a month after the
issuance of the magistrate judge’s report. On July 10, 2013, the district court
adopted and affirmed the magistrate judge’s report, after “independent
de novo
review of the file, and over the objections having been filed.” The сourt, however,
made no mention of Swichkow’s medical records, even though this evidence was
unavailable to Swichkow prior to the issuance of the magistrate judge’s report.
Cf. Williams v. McNeil
,
A review of Swichkow’s medical records illustrate that he was hospitalized on at least nine different occasions between May 2012 and April 2013 for treatment of bladder cancer, renal issues, and heart failure. Notably, in the yeаr leading up to the expiration of the limitations period on January 9, 2013, Swichkow spent approximately 34 days in the hospital. There is no indication that the district court considered whether Swichkow was entitled to equitable tolling for this period, thereby rendering his § 2255 motion, filed fifteen dаys after the expiration of the limitations period, timely. See Mazola v. United States , 294 F. App’x 480, 482 (11th Cir. 2008) (unpublished) (affirming the grant of 42 days of equitable tolling in a § 2255 proceeding, accounting for the days the petitioner was hospitalized for pneumonia and tuberculosis, in addition to his chronic conditions of seizures and asthma).
As such, we vacate the district court’s order granting a COA, and remand
with instructions for the court to consider whether Swichkow warrants a COA to
appeal the denial of his § 2255 motion as untimely. Specifically, the court should
consider whether Swichkow’s § 2255 motion makes a “substantial showing of thе
denial of a constitutional right,” in addition to whether reasonable jurists would
find it debatable whether the district court was correct in its procedural ruling on
timeliness. 28 U.S.C. § 2253(c)(2);
Slack
,
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
Notes
[1] Other circuits have adopted this reasoning.
See, e.g., United States v. White
,
[2] The Seventh Circuit also has looked at whether a jurisdictional bar exists to the district court’s
consideration of a motion for an extension of time to file a 28 U.S.C. § 2254 petition before the
filing of the actual petition.
See Socha v. Pollard
,