Case Information
*1 Before PHILLIPS , McHUGH , and MORITZ , Circuit Judges.
_________________________________
McHUGH , Circuit Judge.
_________________________________
I. INTRODUCTION
Mr. Springer, a federal prisoner acting without counsel, brought this appeal of
the district court’s denial of his motion for collateral relief based on an alleged fraud
on the conviction court.
[1]
The district court resolved the issue on the merits, ruling
that Mr. Springer’s fraud-on-the-court claim is frivolous. Mr. Springer’s appeal of
that decision raises questions concerning the intersection of the Antiterrorism and
Effective Death Penalty Act’s (AEDPA) rules regarding second or successive
collateral attacks on a conviction or sentence and the inherent, equitable powers of
the courts. Specifically, Mr. Springer contends that claims of fraud on the court fall
outside the jurisdictional restrictions imposed by AEDPA and are instead governed
by the United States Supreme Court’s decision in
McQuiggin v
.
Perkins
, 133 S. Ct.
1924 (2013). And Mr. Springer argues that the direction from the Supreme Court in
McQuiggin
is so clear that this panel can depart from our contrary precedent in
United States v. Baker
,
We first conclude that the Supreme Court’s decision in does not supersede our decision in Baker . Consequently, we hold that we may not exercise jurisdiction over Mr. Springer’s appeal in the absence of Certificate of Appealability *3 (COA). Next, we construe Mr. Springer’s notice of appeal as a request for a COA, but deny that request based on a clear procedural bar. Because we lack subject matter jurisdiction, we dismiss this appeal.
II. BACKGROUND
In April 2010, Lindsey Springer was convicted of conspiracy to defraud the
United States, tax evasion, and willful failure to file tax returns. This court affirmed
his convictions and sentence on direct appeal.
United States v. Springer
,
Mr. Springer then filed the “Motion to Enjoin Enforcement of the Judgment Dated April 28, 2010, Based upon Several Frauds on the Court [Motion to Enjoin],” that is the subject of this appeal. In his Motion to Enjoin, Mr. Springer alleged that government attorneys defrauded the conviction court by concealing their lack of authorization to prosecute him. The district court summarily denied the motion, stating: “Over the years, Mr. Springer has made similar arguments challenging the authority of prosecutors and the court, all of which have been rejected. Further discussion of these frivolous arguments is not necessary. The motion is DENIED.” Mr. Springer filed a timely notice of appeal.
The government moved to dismiss the appeal, in part because it claimed Mr. Springer’s Motion to Enjoin was in substance a second or successive § 2255 motion, and he has neither obtained authorization from this court to proceed in the district court, nor obtained a COA to proceed in this court. [2] Mr. Springer responded that he does not need authorization for a fraud-on-the-court claim, citing . We did not rule on the motion to dismiss and instead issued an order appointing Mr. Springer counsel to address the specific question of whether McQuiggin impacts our holding in Baker . We reserved the question of whether Mr. Springer is entitled to a COA. The government’s motion to dismiss is now granted.
III. DISCUSSION
Mr. Springer’s appeal challenges the district court’s order that denied his Motion to Enjoin on the ground that his fraud-on-the-court claim is frivolous. But before we may address the merits of his appeal, we must determine whether Mr. Springer’s claims—although not characterized as such—seek collateral relief under 28 U.S.C. § 2255. That is because AEDPA imposes two jurisdictional barriers to our review.
First, if AEDPA governs Mr. Springer’s claim, we must decide whether a
certificate of appealability (COA) should issue. Where required, a COA is a
prerequisite to this court’s exercise of jurisdiction, and 28 U.S.C. § 2253(c)(1)(B)
*5
plainly requires petitioners to obtain a COA to appeal any “final order in a
proceeding under section 2255.” The COA stage “is not coextensive with a merits
analysis.”
Buck v. Davis
,
Thus, we begin our analysis here by determining whether the district court’s
order denying Mr. Springer’s Motion to Enjoin was issued in a “proceeding under
section 2255.” If we answer that question in the affirmative, we are limited to
granting or denying a COA before we can proceed further. 28 U.S.C. § 2253;
see also
Buck
,
But here, we face a second jurisdictional hurdle: whether the district court had
subject matter jurisdiction to decide the Motion to Enjoin on the merits. Because
Mr. Springer has already submitted an initial petition under § 2255, his motion to the
district court, if within the scope of AEDPA, is a second or successive motion falling
under § 2255(h). As such, this court must grant authorization
[3]
before the district
court may exercise jurisdiction over that second or successive motion. When a
district court is confronted with an unauthorized motion, it “does not even have
jurisdiction to deny the relief sought in the pleading.”
United States v. Nelson
, 465
F.3d 1145, 1148 (10th Cir. 2006). Instead, the court has only two options: it must
either dismiss the motion or, if it is in the interests of justice, transfer the motion to
the circuit court for authorization.
In re Cline
,
In contrast, if Mr. Springer is correct that his Motion to Enjoin based on a claim of fraud on the court is excused from compliance with AEDPA, the district *7 court properly exercised subject matter jurisdiction over the matter and properly reached the merits. Under those circumstances, this court has jurisdiction to review the district court’s decision on the merits. Accordingly, we must decide whether AEDPA is applicable before we can assess our own jurisdiction over this appeal.
We resolve that question in favor of the government, holding that does not clearly undermine our decision in Baker. As a result, this panel may not entertain this appeal in the absence of a COA. And because Mr. Springer has not made “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny COA and dismiss the appeal with instructions to the district court to vacate its decision.
A. The Motion to Enforce is a Second or Successive § Petition Governed
by AEDPA.
1. Our Appellate Jurisdiction
Before we may examine the district court’s jurisdiction, we must first define
the limits of our appellate jurisdiction.
See Steel Co. v. Citizens for a Better Env’t
,
As discussed, Congress has limited our jurisdiction to review a “final order in
a proceeding under section 2255,” such that the petitioner must first obtain a COA
before we have the power to act on the appeal.
See
28 U.S.C. § 2253.
Cf. United
States v. Harper
,
2. Mr. Springer’s Argument
Although Mr. Springer does not characterize his motion as one seeking habeas
relief, it “is the relief sought, not his pleading’s title, that determines whether the
pleading is a § 2255 motion.”
Nelson
,
Mr. Springer’s Motion to Enjoin raises a challenge to his underlying
conviction based on his claim that the federal prosecutors defrauded the conviction
*10
court by misrepresenting their authority. This circuit has held that a motion
challenging a federal conviction based on fraud on the conviction court is properly
deemed a § 2255 motion.
Baker
,
Nonetheless, Mr. Springer contends that
McQuiggin v. Perkins
, 133 S. Ct.
1924 (2013), dictates a result contrary to our holding in
Baker
,
3. United States v. Baker
In
Baker
, the defendant had been convicted of being a felon in possession of
ammunition in violation of 18 U.S.C. § 922(g)(1).
Baker
,
petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.
Id.
After
the district court denied § 2255 relief, we denied Mr. Baker a COA.
Id.
On two
subsequent occasions, Mr. Baker filed for authorization to file second or successive
motions for relief under § 2255, but we denied authorization in both instances.
Id.
Mr. Baker then filed a “Motion to Reconsider and Vacate Enhancement,” which the
district court dismissed as an unauthorized successive petition under § 2255.
Id.
When that motion too proved unsuccessful, Mr. Baker filed a motion in the district
court alleging fraud on the court and purporting to proceed under Rule 60(d)(3).
Id.
;
see
Fed. R. Civ. P. 60(d)(3) (providing that Rule 60 “does not limit a court’s power
to: (3) set aside a judgment for fraud on the court”). The district court concluded that
Mr. Baker’s fraud-on-the-court motion was in substance, a successive motion
collaterally attacking his sentence under § 2255.
Baker,
Mr. Baker appealed, claiming that he did not need a COA because “a motion invoking the district court’s inherent power to set aside a judgment obtained through fraud on the court is not subject to the certification requirements in § 2255(h). . . .” Id. We rejected that argument, holding the district court had correctly treated Mr. Baker’s motion as a second or successive petition under § 2255 because the motion asserted claims of error in Mr. Baker’s conviction. Id. We explained that even where the petitioner has invoked the inherent power of the court to correct fraud on the court, “we look at the relief sought, rather than a pleading’s title or its form, to *13 determine whether it is a second-or-successive collateral attack on a defendant’s conviction.” Id. at 1208.
4. McQuiggin v. Perkins
After our decision in Baker , the Supreme Court issued its decision in McQuiggin . There, Mr. Perkins waited more than 11 years to file an initial petition for relief from his conviction under 28 U.S.C. § 2244. [5] McQuiggin , 133 S. Ct. at 1929. Pursuant to AEDPA, such initial petitions must ordinarily be filed within one year of “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). But where the petitioner relies on newly discovered evidence, an initial petition may be filed within one year of “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” Id. at § 2244(d)(1)(D).
Mr. Perkins relied on the second of these deadlines, claiming that three
affidavits implicating a third party as the perpetrator of the crime were newly
discovered. ,
The Sixth Circuit granted Mr. Perkins a COA on the issue of whether “reasonable diligence [is] a precondition to relying on actual innocence as a gateway to adjudication of a federal habeas petition on the merits.” Id. After argument on that question, the Sixth Circuit reversed and remanded, holding that Mr. Perkins should be permitted to present his habeas claims as if timely filed, despite his lack of diligence. Id. The Supreme Court granted certiorari to resolve a conflict among the federal circuits on “whether AEDPA’s statute of limitations can be overcome by a showing of actual innocence.” Id.
To begin, the Court clarified that Mr. Perkins was not entitled to equitable tolling of the statute of limitations because he had not acted diligently. Id. at 1931. Instead, the Court framed the relevant issue as whether Mr. Perkins’s “plea of actual innocence can overcome AEDPA’s one-year statute of limitations,” providing him with “an equitable exception to § 2244(d)(1), not an extension of the time statutorily prescribed.” (emphasis omitted).
The Court next focused on the historical significance of a “convincing actual-
innocence claim,” noting that “a credible showing of actual innocence may allow a
prisoner to pursue his constitutional claims . . . on the merits notwithstanding the
existence of a procedural bar to relief.”
Id.
The Court further explained that this
“fundamental miscarriage of justice exception, is grounded in the ‘equitable
*15
discretion’ of habeas courts to see that federal constitutional errors do not result in
the incarceration of innocent persons.”
Id.
(citing
Herrera v. Collins
,
Important for our purposes, the Court in
McQuiggin
held that the “actual
innocence” gateway to federal habeas review applied in
House v. Bell
,
5. McQuiggin Does Not Undermine Baker
Mr. Springer contends that his fraud-on-the-court claim is not subject to the authorization requirement because “AEDPA does not ‘clearly’ indicate a Congressional intent to restrict this traditional equitable authority.” Mr. Springer also asserts that like actual innocence, fraud-on-the-court claims should not be subject to procedural constraints because “they impact the very integrity of the judicial process.”
It is true that the courts are endowed with equitable powers, including the
power to address fraud on the court.
See Hazel-Atlas Glass Co. v. Hartford-Empire
Co.,
First, despite ’s broad language that we should “not construe
[AEDPA] to displace [our] traditional equitable authority absent the clearest
command,” the decision dealt specifically with claims of actual innocence and the
miscarriage of justice exception.
This limitation is appropriate in light of the significant differences between an
actual innocence claim and a claim of fraud on the court. Unlike claims of actual
innocence, fraud-on-the-court claims do not necessarily implicate the “fundamental
miscarriage of justice exception, [which] is grounded in the ‘equitable discretion’ of
*18
habeas courts to see that federal constitutional errors do not result in the incarceration
of innocent persons.”
McQuiggin
,
Second, McQuiggin ’s analysis centers on first habeas petitions and the Court underscores that a miscarriage of justice exception raised in a second or successive petition can succeed only if it comports with the requirements of AEDPA. Id. at 1934 (“In a case not governed by [the second or successive] provisions, i.e., a first petition for federal habeas relief, the miscarriage of justice exception survived AEDPA’s passage intact and unrestricted.”) (emphasis added); see also In re Bolin , 811 F.3d 403, 411 (11th Cir. 2016) (holding that the analysis in McQuiggin is limited to initial petitions for habeas relief). [6]
And Congress has directed that we differentiate between first petitions for collateral relief and second or successive petitions. Whereas a first AEDPA petition “ shall be subject to review, on appeal, by the court of appeals,” 28 U.S.C. § 2253(a) (emphasis added), the right to bring a second or successive petition is severely restricted and generally barred unless the petitioner can obtain authorization from the court of appeals and show the motion contains either:
(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; or
*20 (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h);
In re Lindsey
,
Nonetheless, Mr. Springer contends that the distinctions between the requirements for first and second habeas petitions do not matter here because fraud on the court is not specifically addressed in § 2255(h), whereas “AEDPA expressly limits the miscarriage of justice exception for claims of actual innocence when they appear in a second or successive § 2255 petition.” Mr. Springer also notes that “[n]owhere in the text of AEDPA, neither in the rules on first petitions nor second or successive petitions, does Congress expressly limit a federal court’s power to grant relief for a tenable fraud-on-the-court claim.” Accordingly, Mr. Springer argues that the difference between first and second petitions matters in only because § 2255(h) expressly deals with actual innocence. But Mr. Springer ignores an important distinction between the statute of limitations applicable to first petitions and the restrictions on the district and circuit courts with respect to second or successive petitions.
Both the authorization requirement under 28 U.S.C. § 2255(h) and the COA
requirement under 28 U.S.C. § 2253 are jurisdictional prerequisites to the federal
courts’ exercise of subject matter jurisdiction. In contrast, the Court in
McQuiggin
*21
held that a claim of actual innocence could circumvent the nonjurisdictional
procedural default rule found in § 2244(d)(1).
[7]
See McQuiggin
,
For all of these reasons, we are not convinced that has so clearly
undermined the analysis in
Baker
that this panel is relieved of the obligation of
following our circuit precedent.
[9]
It follows then that Mr. Springer’s Motion to Enjoin
is a second or successive petition governed by AEDPA. As a result, we may not
exercise jurisdiction over this appeal unless Mr. Springer “has made a substantial
*23
showing of the denial of a constitutional right,” thereby entitling him to a COA.
See
28 U.S.C. § 2253(c)(2). Mr. Springer should have filed a request for a COA with the
district court, but a notice of appeal constitutes a request for a certificate of
appealability.
See
Fed. R. App. P. 22(b)(2);
Slack
,
B. Mr. Springer is not Entitled to a COA
Because the district court denied Mr. Springer’s motion on the merits, our
COA inquiry would typically focus on whether “reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.”
Slack
,
Recall however, that the district court here failed to treat Mr. Springer’s motion as a proceeding under § 2255 and, without authorization from this court, summarily denied the motion on the merits. As we now explain, that procedural posture provides a basis for denial of a COA.
1. Mr. Springer’s Motion Fails Under Plain Procedural Bar
We addressed a similar situation in
Davis v. Roberts
,
To the extent that Mr. Davis raises a claim challenging the execution of his 1991 sentence, the district court lacked jurisdiction to hear the claim because he was no longer in custody under that sentence when he filed for relief in that court. Therefore, dismissal of Mr. Davis's § 2241 claim was clearly correct and we deny a COA on that claim.
Id.
Here, we have concluded that Mr. Springer’s motion is a habeas petition under
§ 2255. Because he has previously filed an initial habeas petition, this petition is
subject to AEDPA’s constraints on second or successive petitions.
See Williams
, 790
F.3d at 1067 (“After a federal prisoner has filed one postjudgment habeas petition,
which is permitted under 28 U.S.C. § 2255(a), another postjudgment motion is
treated as a second or successive § 2255 motion if it asserts or reasserts claims of
error in the prisoner’s conviction.”);
Baker
,
reasons the district court did not rely on, we may deny a COA for such reasons when
they demonstrate, beyond debate among jurists of reason, that the appellant cannot
prevail.”);
Miller v. Glanz
,
One such constraint precludes a petitioner from filing a second or successive
§ 2255 motion unless he first obtains “an order from the appropriate court of appeals
authorizing the district court to consider the motion. . . .”
United States v. Nelson
,
So when the district court summarily denied Mr. Springer’s Motion to Enjoin
as frivolous rather than dismissing it as unauthorized under AEDPA, or transferring it
to us for authorization, the district court acted without subject matter jurisdiction.
United States v. Wetzel-Sanders
,
Based on this “plain procedural bar,” we deny Mr. Springer’s request for a
COA.
[12]
See United States v. Arrington
,
IV. CONCLUSION
Under our controlling precedent, Mr. Springer’s Motion to Enjoin is a second or successive petition for habeas relief. As such, we lack jurisdiction to entertain his appeal unless he first obtains a COA. Treating Mr. Springer’s notice of appeal as a request for a COA, we conclude that his Motion to Enjoin faced a clear procedural bar in the district court due to that court’s lack of subject matter jurisdiction. We therefore DENY Mr. Springer’s request for a COA and DISMISS this appeal, with instructions to the district court to vacate its decision. [14]
All other outstanding motions are denied as moot.
Notes
[1] Although Mr. Springer initiated this appeal pro so, in an Order dated January 11, 2017, we directed that CJA counsel be appointed and supplemental briefing be filed. In light of our January 11, 2017 order, Mr. Springer’s motion to proceed in forma pauperis is denied as moot.
[2] Mr. Springer objects that the government’s motion to dismiss was filed more
than 14 days after his notice of appeal and thus, absent good cause, was untimely
under 10th Cir. R. 27.3(A)(3)(a). But the motion raises jurisdictional issues that we
would examine in any event.
Tooele Cty. v. United States
,
[3] The statute, 28 U.S.C. § 2255(h), calls this “certification,” but courts routinely refer to it as “authorization.” We use “authorization” in this opinion to distinguish this statutory mandate from the separate and independent “certificate of appealability” requirement in 28 U.S.C. § 2253.
[4] As we recently explained: Courts have historically enjoyed the inherent authority to correct judgments obtained by the commission of fraud on the court, regardless of ordinary procedural bars like statutes of limitations or the time limits imposed on motions to set aside judgments for fraud. This is because a decision produced by fraud on the court is not in essence a decision at all, and never becomes final.
[5] The restrictions on second or successive petitions in 28 U.S.C. § 2244 are
also applicable to petitions under 28 U.S.C. § 2255.
See In re Clark
,
[6] We noted in our unpublished decision United States v. Zaler , 601 F. App’x 677, 679 (2015), that “[i]t was important in McQuiggin . . . that the prisoner sought to bring an untimely first habeas application. Notably, also recognized that Congress, through 28 U.S.C. § 2244(b), intended to ‘modify’ and ‘constrain[]’ . . . second or successive § 2255 motions.” Zaler accordingly held that “[w]e are not persuaded that a reasonable jurist could debate whether McQuiggin allows Mr. Zaler to circumvent § 2255(h)’s restrictions simply by recasting his original untimely § 2255 claim as a claim of fraud upon the court.”
[7] Although
McQuiggin
uses the term “procedural bar,”
[8] In his dissent, Justice Scalia explained that the procedural default rule is not jurisdictional , “rather, it is a prudential rule grounded in considerations of comity and concerns for the orderly administration of criminal justice.” at 1937 (Scalia, J., dissenting) (internal quotation marks omitted).
[9] “[I]n
United States v. Baker
, we squarely rejected the possibility that alleging
fraud on the court of conviction creates an exception to the
procedural bars
under
§ 2255(h).”
Williams
,
[10] In our decisions addressing unauthorized merits dismissals of second or
successive petitions, we have seldom discussed the COA requirement, and even when
we have done so, we have summarily denied the COA without addressing the
analytical framework set forth in
Slack
.
See, e.g.
,
United States v. Wetzel-Sanders
,
[11]
See also United States v. Allen
,
[12] We likewise decline to exercise our discretion to construe Mr. Springer’s
appeal as a request for authorization.
United States v. Williams
,
[13]
Cf. Neiberger v. Rudek
,
[14]
Cf. Burton v. Stewart
,