In Re: Taylor v. ( 1999 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: AUDWIN HAWATHA TAYLOR,
No. 98-636
Movant.
On Motion for Authorization.
Argued: January 26, 1999
Decided: March 18, 1999
Before ERVIN, MOTZ, and TRAXLER, Circuit Judges.
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Dismissed by published opinion. Judge Traxler wrote the opinion, in
which Judge Ervin and Judge Motz joined.
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COUNSEL
ARGUED: Lisa Rafferty, Student Counsel, Appellate Litigation Pro-
gram, GEORGETOWN UNIVERSITY LAW CENTER, Washington,
D.C., for Movant. Timika Shafeek, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Respondent.
ON BRIEF: Steven H. Goldblatt, Director, Catherine E. Lhamon,
Supervising Attorney, Appellate Litigation Program, GEORGE-
TOWN UNIVERSITY LAW CENTER, Washington, D.C., for
Movant.
_________________________________________________________________
OPINION
TRAXLER, Circuit Judge:
Audwin Hawatha Taylor ("Taylor") filed a motion in this court
requesting our permission to file an application for relief from his
sentence under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998), as
amended by the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), Pub.L. No. 104-132, sec. 105, 110 Stat. 1214, 1220.
Because Taylor seeks to raise only issues that originated during a
resentencing hearing which resulted from his previously successful
§ 2255 motion, we hold that the § 2255 motion he now seeks to file
is not "second or successive" within the meaning of § 2255. Accord-
ingly, Taylor does not need our authorization to file the § 2255
motion in the district court, and we dismiss his motion seeking per-
mission to file a second or successive application as unnecessary.
I.
In December 1994, Taylor pled guilty to one count of conspiracy
to possess with the intent to distribute cocaine and cocaine base in
violation of 21 U.S.C.A. § 846 (West Supp. 1998), and to three counts
of using or carrying a firearm during and in relation to a drug traffick-
ing crime in violation of 18 U.S.C.A. § 924(c)(1) (West Supp. 1998).
The district court imposed a sentence of 120 months for the conspir-
acy count, and a sentence of 60 months for each of the firearm
charges to run concurrently with each other and consecutively to the
conspiracy sentence, for a total of 180 months.
In June 1996, Taylor filed a motion under 28 U.S.C.A. § 2255,
seeking to set aside his § 924(c) convictions pursuant to Bailey v.
United States, 516 U.S. 137 (1995). The district court vacated the
firearm convictions because the government failed to show that Tay-
lor used or carried the firearms within the meaning of § 924(c) as
clarified by Bailey. At resentencing, the district court imposed a sen-
tence for the single count of conspiracy. No direct appeal was taken.
Taylor now seeks to file a § 2255 motion challenging his new sen-
tence, asserting that he received ineffective assistance of counsel dur-
ing the resentencing proceeding.
II.
Under the AEDPA amendments to 28 U.S.C.A. § 2255, a "second
or successive" § 2255 motion to vacate a sentence may not be filed
in the district court unless the movant has received permission to do
so from the appropriate court of appeals. See 28 U.S.C.A. § 2255. The
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AEDPA amendments set forth the criteria that the requested "second
or successive" motion must satisfy for the movant to obtain permis-
sion from the court of appeals to proceed. Specifically, § 2255 pro-
vides that:
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 evi-
dence that no reasonable factfinder would have
found the movant guilty of the offense; or
(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.A. § 2255 (West Supp. 1998).
Taylor concedes that he is unable to satisfy either of these criteria
to obtain permission to file a "second or successive" § 2255 motion.
Instead, he contends that we should not construe his§ 2255 motion
to be "second or successive" within the meaning of § 2255 because
it challenges only those issues which arose during the resentencing
hearing that followed the district court's grant of his prior § 2255
motion.
The AEDPA amendments to § 2255 do not define the phrase "sec-
ond or successive." However, Congress did "not write upon a clean
slate" when it enacted the AEDPA. United States v. Texas, 507 U.S.
529, 534 (1993). The preexisting version of § 2255 also imposed limi-
tations upon a prisoner's right to bring "a second or successive motion
for similar relief," 28 U.S.C.A. § 2255 (West 1994), and we have pre-
viously recognized that the AEDPA "codif[ied] and extend[ed] judi-
cially constructed limits on the consideration of second and
successive applications for collateral relief." In re Vial, 115 F.3d
1192, 1194 (4th Cir. 1997) (en banc).
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Prior to the enactment of the AEDPA, a "successive petition" for
collateral relief was one which raised "grounds identical to those
raised and rejected on the merits on a prior petition," and a "petition
raising grounds that were available but not relied upon in a prior peti-
tion" could be dismissed on the ground that the petitioner "ha[d]
abused the writ." Kuhlmann v. Wilson, 477 U.S. 436, 444 n.6 (1986)
(emphasis added); accord Miller v. Bordenkircher , 764 F.2d 245,
248-49 (4th Cir. 1985). Thus, under pre-AEDPA law, a claim which
did not arise until after a prior petition was filed would not be barred
as "second or successive" or by the "abuse of the writ" doctrine.
Accordingly, we hold that the § 2255 motion which Taylor pres-
ently seeks to file is not "second or successive" within the meaning
of the AEDPA amendments to 28 U.S.C.A. § 2255 because Taylor
expressly seeks to raise only those issues that originated at the time
of his resentencing, after his first § 2255 petition had been granted.
Thus, it is Taylor's first opportunity to assert new issues which arose
during his resentencing hearing. See Walker v. Roth, 133 F.3d 454,
455 (7th Cir. 1997) (holding that a habeas petition which seeks to
raise only new issues arising from a resentencing is not "second or
successive" for purposes of the AEDPA); Esposito v. United States,
135 F.3d 111, 113-14 (2d Cir. 1997) (finding subsequent petition was
not second or successive because the defendant only sought to vacate
an amended sentence on grounds which arose during resentencing).
We further hold that in these circumstances a § 2255 motion may be
presented directly to the district court without our certification.*
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*We recognize the government's concern that § 2255 applicants, under
the guise of collaterally challenging a resentencing proceeding, may seek
to raise issues which could have been raised in a prior § 2255 motion. In
the instant case, Taylor presented his motion directly to this court. Con-
sequently, we do not have the benefit of the district court transcript on
resentencing and cannot determine for certain whether all of the issues
Taylor now seeks to raise arose solely as a result of his amended sen-
tence. Taylor has represented this to be the case, and the government
appears to confirm this to be true.
Nevertheless, we believe that this determination should be made by the
district judge presented with the § 2255 motion, who is in the best posi-
tion to separate the "new" issues from any which existed at the time the
applicant filed an earlier § 2255 motion and to limit his consideration of
the motion accordingly.
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III.
For the foregoing reasons, the § 2255 motion that Taylor seeks to
file in the district court is not "second or successive" and Taylor is not
required to obtain a certification from this court to file the motion.
Accordingly, his request for certification is dismissed and we instruct
the district court to accept filing of Taylor's§ 2255 motion.
DISMISSED
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