UNITED STATES of America, Plaintiff-Appellee, v. John Fitzgerald PRESCOTT, Defendant-Appellant.
No. 99-6721.
United States Court of Appeals, Fourth Circuit.
Argued June 7, 2000. Decided July 31, 2000.
221 F.3d 686
IV.
In summary, Jenkins’ claim was not procedurally defaulted, and his claim is not Teague-barred. Having considered the merits, we hold that Jenkins’ due process rights were violated by the advisory jury instructions given at his trial. Accordingly, we affirm the order of the district court granting the writ of habeas corpus.
AFFIRMED
ARGUED: Christopher Eric Gatewood, Third-Year Law Student, University of Virginia School of Law Appellate Litigation Clinic, Charlottesville, Virginia, for
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Affirmed by published opinion. Judge TRAXLER wrote the majority opinion, in which Judge DIANA GRIBBON MOTZ joined. Judge KING wrote a concurring opinion.
OPINION
TRAXLER, Circuit Judge:
John F. Prescott (“Prescott“) appeals the district court‘s dismissal of his motion for collateral relief under
I.
On December 15, 1995, a jury convicted Prescott of possession of a firearm after a felony conviction in violation of
II.
Prescott argues that the pendency of a motion for a new trial under Rule 33 tolls the one-year statute of limitations for filing a motion to vacate, set aside, or correct sentence under
Prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 100 Stat. 1214 (AEDPA), a federal prisoner could collaterally attack his conviction via a § 2255 motion “at any time.”
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from ...
(1) the date on which the judgment of conviction becomes final....
As an initial matter, Prescott observes that this court has the authority to toll the filing period of § 2255. Our authority to toll a time limit depends on whether the limit is a jurisdictional bar or a statute of limitations. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Harris v. Hutchinson, 209 F.3d 325, 328-29 (4th Cir.2000). In Harris, we held that “the limitations provisions [of the AEDPA] do not speak in jurisdictional terms or refer in any way to the jurisdiction of district courts.” Id. at 329 (internal quotation marks omitted). Thus, § 2255‘s limitation period is subject to equitable modifications such as tolling. See id.
Of course, the inquiry does not end with this court‘s authority to toll the limitation period. Prescott must also adduce circumstances showing that he is entitled to the relief requested. Typically, these “circumstances [are] external to the party‘s own conduct,” thus making it “unconscionable to enforce the limitation period against the party.” Id. at 330. Prescott candidly admits that the facts of his case do not support equitable tolling, and instead argues that general interests of justice counsel tolling the one-year limitation period while a Rule 33 motion is pending. Recognizing that the extraordinary remedy sought is sparingly granted, cf. Irwin v. Dep‘t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), we examine the proffered justifications for tolling.
First, Prescott contends that tolling the AEDPA period is necessary to the continued viability of Rule 33 and the efficient operation of the district courts. Rule 33, of course, permits district courts to grant a new trial “if the interests of justice so require.”
Though Rule 33 and § 2255 overlap to some extent, there are critical differences which make it unlikely, even with the changes wrought by the AEDPA,1 that Rule 33 will be eviscerated. For example, upon entertaining a Rule 33 motion, the district court may grant a new trial if the interests of justice favor the movant. By its terms, Rule 33 confers broad discretion on a district court. To grant relief under § 2255, on the other hand, the district court must “find[] that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.”
As for docket congestion, we recognize that in some instances the AEDPA‘s one-year limitation provision will compel a prisoner to file a § 2255 motion before his earlier Rule 33 motion is resolved. Consolidation of motions under Rule 33 and § 2255 is an option, and district courts are well equipped to resolve these motions in a timely and expeditious manner. A problem obviously may arise if “one motion is on appeal when the second reaches the district court.” O‘Connor v. United States, 133 F.3d 548, 551 (7th Cir.1998). However, this state of affairs hardly impedes the administration of justice as alleged by Prescott. A variety of post-trial motions are available to prisoners and were available before the enactment of the AEDPA. Courts have always given each post-trial motion due consideration and the filing of a § 2255 motion while a Rule 33 motion is on appeal in no way jeopardizes the receipt of that process which is due or overly burdens the operation of the district courts.
Prescott further argues that the exhaustion requirement in
a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.
Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Section 2255 applies only to “prisoner[s] in custody under sentence of a court established by Act of Congress,” and therefore principles of comity underlying the exhaustion doctrine are inapplicable. Moreover, § 2244(d) indicates Congress was aware of tolling issues regarding post-conviction relief proceedings, yet chose not to add an exhaustion requirement for post-trial motions to § 2255. In light of the unambiguous language of the statute and Congress’ knowing rejection of an exhaustion requirement for § 2255, we would be guilty of judicial legislation were we to grant the relief Prescott requests. See United States v. Brockamp, 519 U.S. 347, 352, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997) (explaining that absent “counterindications,” courts should not assume that “Congress ... intend[ed] courts to read other unmentioned, open-ended, ‘equitable’ exceptions into the statute that it wrote“). We therefore decline to toll the limitation period of § 2255 while a petitioner pursues relief under Rule 33.
III.
For the foregoing reasons, we affirm the district court‘s dismissal of Prescott‘s § 2255 motion.
AFFIRMED
I must agree that the scheme now encompassed in section 2255 does not permit the tolling of the period of limitations during the pendency of a motion for new trial, and I also agree that the facts underlying Prescott‘s appeal do not permit the equitable tolling of the limitations period here. I write separately only to highlight a few issues created by the statute as it now stands.
Among other things, section 2255, as amended by AEDPA, encourages the filing of parallel petitions for collateral relief in certain circumstances. That is, a prisoner in Prescott‘s position must file a section 2255 motion even when another collateral challenge—including a motion for new trial—is already pending. If a prisoner waits until all pending motions have been resolved before filing for relief under section 2255, he risks a statute of limitations bar; such a scheme is plainly antithetical to the interests of judicial efficiency, leaving district courts to manage a new collateral challenge while one collateral challenge is pending. By contrast, Congress sought to prevent the consideration of parallel petitions for collateral relief when a state-convicted prisoner seeks federal habeas corpus relief,* and we have recognized that the exhaustion and tolling provisions employed in the section 2244(d)(2) circumstance serve not only the interests of comity, but also the interests of judicial efficiency. See Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir.1999). I am at a loss to explain why Congress would not have similarly insured that, in the section 2255 context, (1) other collateral challenges were resolved before a section 2255 challenge, and (2) the time limitations under section 2255 were tolled during the pendency of other collateral challenges.
I agree with Judge Traxler that district courts should consolidate motions for collateral relief when possible. See ante at 688-89. In that regard, another option for the district courts is the approach adopted by the Seventh Circuit in O‘Connor v. United States, 133 F.3d 548, 550 (7th Cir.1998). There, the Seventh Circuit provided that when a district court receives a motion for new trial, it must ask the prisoner whether he intends to file a section 2255 motion. If the prisoner intends to do so, the district court is to delay consideration of the Rule 33 motion until it has received the section 2255 petition, permitting the district court to consider all of the collateral challenges at once. This solution would also help to prevent default by prisoners: by asking whether the prisoner intends to file a section 2255 petition, the district court indicates to the prisoner—who, having pinned his hopes on one collateral challenge, might not have realized that the clock is ticking on his section 2255 challenge—that he should proceed with the section 2255 petition. Id. at 551 (“Any other course fractures the case into slivers, jeopardizes the defendant‘s opportunity for one complete collateral attack, or both.“). The approach of the Seventh Circuit has obvious merit, and, among other things, it promotes judicial efficiency by encouraging the resolution of collateral challenges together.
Congressional drafting and applicable circuit precedent operate to prevent relief for Prescott in this case, and for that reason I concur in the opinion of my friend Judge Traxler. However, I would suggest that Congress take note of these issues and undertake to remedy them.
Notes
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense....