Wall v. United States of America, No. 10-2354 (2d Cir. 2010)
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10-2354-op Robert F. Wall v. USA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009 (Submitted: August 9, 2010 Decided: September 2, 2010) Docket No. 10-2354-op R OBERT F. W ALL, Petitioner, v. U NITED S TATES OF A MERICA, Respondent. Before: R AGGI, W ESLEY, L YNCH, Circuit Judges. Petitioner moves for leave to file a successive 28 U.S.C. § 2255 petition. However, because the claims in his first § 2255 petition were, in substance, incorporated into his subsequent direct appeal, his proposed § 2255 petition is not second or successive. 28 U.S.C. § 2255(h). Accordingly, we deny his application as unnecessary, and transfer the matter to the district court with instructions that his § 2255 petition be accepted for filing. R OBERT F. W ALL, pro se, Sandstone, MN. 1 P ER C URIAM: 2 Petitioner Robert F. Wall, proceeding pro se, seeks 3 leave to file a successive 28 U.S.C. § 2255 petition raising 4 various challenges to his judgment of conviction, entered on 5 July 31, 2009, for the possession of child pornography. 6 hold that Wall s prior § 2255 petition, challenging an 7 earlier judgment of conviction entered in this case on 8 September 25, 2007, does not count for purposes of 9 determining whether his current motion is second or We 10 successive under 28 U.S.C. § 2255(h). Not only did that 11 petition result in the vacatur of the original judgment and 12 entry of a new one, but the gravamen of Wall s prior 13 petition was incorporated into his subsequent direct appeal. 14 Only thereafter did Wall first petition for § 2255 relief 15 from the July 31, 2009 judgment. 16 we deny the successive motion as unnecessary, and transfer 17 the matter to the district court with instructions that 18 Wall s § 2255 petition be accepted for filing. Under these circumstances, 19 20 I. BACKGROUND 21 In September 2007, Wall was convicted pursuant to a 22 plea agreement for possession of child pornography, and was 2 1 sentenced principally to a term of ten years imprisonment. 2 No direct appeal was filed at that time. 3 Wall filed a § 2255 petition, pro se, in which he argued 4 that he was denied the effective assistance of counsel 5 because his attorney neglected to appeal his conviction when 6 Wall asked him to do so. 7 challenges to the legality of his conviction and sentence in 8 that petition. 9 In March 2008, Wall also included a number of In August 2008, the district court ordered a hearing on 10 the issue of whether Wall had timely notified his attorney 11 of his desire to appeal the conviction, and dismissed Wall s 12 remaining claims on their merits. 13 hearing, the parties stipulated that Wall did want to appeal 14 his conviction, but that his attorney failed to advise him 15 of the need to file a timely notice of appeal. In lieu of an evidentiary 16 In July 2009, the court granted the ineffective- 17 assistance portion of Wall s § 2255 petition based on the 18 parties stipulation, but indicated that Wall s remaining 19 claims were denied for the reasons articulated in the 20 court s August 2008 order. 21 for a direct appeal that he never had, the court vacated its 22 September 2007 judgment of conviction, and entered an To provide Wall the opportunity 3 1 amended judgment of conviction with terms identical to those 2 in the prior judgment. 3 appeal from both the amended judgment of conviction and the 4 court s partial denial of his § 2255 petition. 5 Wall then filed a timely notice of Our Court consolidated Wall s appeals. His appointed 6 counsel subsequently moved to be relieved as appellate 7 counsel, Anders v. California, 386 U.S. 738 (1967), and the 8 Government moved for summary affirmance of Wall s 9 conviction. In April 2010, our Court: (1) granted counsel s 10 Anders motion; (2) granted the Government s motion for 11 summary affirmance as to the non-incarceratory portions of 12 Wall s sentence; (3) construed the Government s motion, as 13 to the conviction and incarceratory portions of Wall s 14 sentence, as a motion to dismiss the appeal based on the 15 waiver of appellate rights contained in Wall s plea 16 agreement; and (4) dismissed the appeal. 17 our Court construed Wall s notice of appeal from the partial 18 denial of his § 2255 petition as a motion for a certificate 19 of appealability, which we denied. 20 the present motion for leave to file a successive § 2255 4 At the same time, In July 2010, Wall filed 1 petition. 1 II. DISCUSSION 2 3 Under the Antiterrorism and Effective Death Penalty Act 4 of 1996 ( AEDPA ), Pub. L. No. 104-132, 110 Stat. 1214, a 5 petitioner incarcerated pursuant to a federal judgment 6 cannot bring a second or successive petition for habeas 7 relief, unless he or she obtains permission from a court of 8 appeals. 9 before determining whether to grant such a motion, our See 28 U.S.C. §§ 2255(h), 2244(b). However, 10 threshold inquiry is whether the proposed petition would be 11 successive. 12 637, 639-40 (1998). 13 to be deemed successive, it must at a minimum be filed 14 subsequent to the conclusion of a proceeding that counts 15 as the first. 16 (2d Cir. 2002) (internal quotation marks omitted). See Stewart v. Martinez-Villareal, 523 U.S. In order for a proposed § 2255 petition Ching v. United States, 298 F.3d 174, 177 17 Though AEDPA does not define the phrase second or 18 successive, we have previously held that a motion under § 1 Because Wall filed his application on July 14, 2010, the statutory deadline for decision was August 13, 2010. See 28 U.S.C. § 2244(b)(3)(D). However, we may "exceed the 30-day limit . . . where an issue requires a published opinion that cannot reasonably be prepared within 30 days." Galtieri v. United States, 128 F.3d 33, 37 (2d Cir. 1997). 5 1 2255 is not a substitute for direct appeal. 2 United States, 433 F.3d 212, 217 (2d Cir. 2005) (noting that 3 claims available to be asserted on direct appeal, but were 4 not, are procedurally defaulted and may not be raised in a 5 subsequent § 2255 proceeding unless certain conditions are 6 met). 7 petitioner has exhausted his direct appeal are generally 8 considered premature. 9 34, 41 (2d Cir. 1984). 2 10 Sapia v. Moreover, habeas petitions filed before the See United States v. Dukes, 727 F.2d Here, the district court granted relief on the 11 ineffective assistance claim raised in Wall s first § 2255 12 petition by vacating the original judgment of conviction and 13 entering a new one. 3 In this way, the court placed Wall in 2 In United States v. Outen, however, we held that there is no jurisdictional bar to a district court s adjudication of a § 2255 motion during the pendency of a direct appeal, and noted that concerns over such a practice were motivated solely by judicial economy and the possibility that the results on direct appeal may make the district court s efforts on the § 2255 motion a nullity. 286 F.3d 622, 632 (2d Cir. 2002). 3 Because Wall s original judgment of conviction was vacated entirely and a new judgment was entered, this case is unlike those in which the petitioner s first habeas petition is granted as to his sentence, in whole or in part, and the petitioner subsequently files another habeas petition challenging the unamended portions of his sentence, or the underlying conviction itself. See, e.g., Galtieri v. 6 1 the same position he would have been in but for the Sixth 2 Amendment violation: he was given an avenue to pursue a 3 direct appeal from his conviction and sentence. 4 point, Wall s remaining claims were more properly left for 5 consideration on direct appeal from the amended judgment in 6 the first instance. 7 have dismissed those claims as premature instead of 8 disposing of them on their merits. 9 At that Accordingly, the district court should In any event, the substance of those additional claims 10 set forth in Wall s first § 2255 petition were 11 subsequently incorporated into his direct appeal when the 12 two appeals were consolidated. 13 motion, along with the Government s motion to dismiss, our 14 Court tacitly acknowledged that the claims contained in 15 Wall s § 2255 petition were potential arguments on direct 16 appeal, but were frivolous. 17 Under these circumstances, we will not penalize a prisoner, 18 who files a successful § 2255 petition challenging the 19 unconstitutional denial of his opportunity for a direct 20 appeal, for simultaneously including claims challenging a In granting counsel s Anders See Anders, 386 U.S. at 744. United States, 128 F.3d 33, 37-38 (2d Cir. 1997). 7 1 2 conviction that the district court vacated. This view is consonant with our practice of permitting 3 a petitioner not only a direct appeal but one full 4 opportunity to seek collateral review of a judgment. 5 Vasquez v. Parrott, 318 F.3d 387, 390 (2d Cir. 2003) 6 (internal quotation marks omitted). 7 use of AEDPA s gatekeeping function to deprive petitioners 8 of that latter opportunity. 9 States, 408 F.3d 116, 118-19 (2d Cir. 2005); Adams v. United We avoid the liberal See, e.g., Whab v. United 10 States, 155 F.3d 582, 584 (2d Cir. 1998). 11 petitioner is forced to use a [§ 2255] motion to obtain a 12 direct appeal, and a district court enters an amended 13 judgment to afford such appeal, we will not bar a subsequent 14 § 2255 motion attacking the amended judgment, for to do so 15 would strip the petitioner of the opportunity to lodge a 16 true collateral attack on his [conviction and] sentence, 17 which is the explicit purpose of [§] 2255. 18 United States, 607 F.3d 318, 321 (2d Cir. 2010) (quoting 19 Johnson v. United States, 362 F.3d 636, 638 (9th Cir. 2004). 20 In sum, when a Urinyi v. In short, because the claims contained in Wall s prior 21 § 2255 petition were, in substance, incorporated into his 22 direct appeal from the amended judgment of conviction, his 8 1 proposed § 2255 petition represents his first true 2 collateral attack to his conviction. 3 petitioner to file a subsequent [§] 2255 motion attacking 4 the conviction and sentence, the petitioner is restored to 5 the procedural posture he would have enjoyed if he had been 6 represented by effective counsel who had timely filed a 7 notice of appeal. 8 petition is not second or successive under AEDPA, and he 9 need not obtain leave from our Court as a precondition for 10 Id. [B]y permitting the Accordingly, Wall s proposed § 2255 filing in the district court. 11 III. CONCLUSION 12 13 For the foregoing reasons, Wall s motion for leave to 14 file a successive § 2255 petition is DENIED as unnecessary, 15 and the matter is transferred to the district court with 16 instructions that a new § 2255 petition be accepted for 17 filing. 4 4 Wall has also filed a motion for bail pending habeas litigation and a motion for reconsideration addressing his motion for bail, which we construe as supplementary papers in support of that motion. Because Wall is presently seeking permission to file a habeas petition, it is not clear whether he is eligible for bail pending habeas litigation. In any event, even if he were eligible, he does not meet the rigorous standard. See Mapp v. Reno, 241 F.3d 9 221, 226 (2d Cir. 2001) (noting that [t]he standard for bail pending habeas litigation is a difficult one to meet: [t]he Petitioner must demonstrate that the habeas petition raise[s] substantial claims and that extraordinary circumstances exist[ ] that make the grant of bail necessary to make the habeas remedy effective ) (first, third, and fourth alterations in original; internal quotation marks omitted). Accordingly, Wall s motion for bail is denied. 10
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