United States v. Parker ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-7315
GERALD PARKER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Terrence W. Boyle, District Judge.
(CR-94-73, CA-96-90-4-BO)
Submitted: October 29, 1996
Decided: December 17, 1996
Before WILKINS, WILLIAMS, and MOTZ, Circuit Judges.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
Gerald Parker, Appellant Pro Se. John Douglas McCullough, Assis-
tant United States Attorney, Robert Edward Skiver, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellant appeals the order of the district court dismissing as moot
his motion for relief pursuant to 28 U.S.C. § 2255 (1994), amended
by Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
No. 104-132, 110 Stat. 1214. We vacate the district court's order and
remand this action for further proceedings.
The Government argued before the district court that Appellant's
motion should be dismissed as moot because Appellant was not "in
custody" by virtue of a stay of execution. This argument is without
merit. Appellant was subject to a sentence of imprisonment based on
his conviction. However, at the time he filed his§ 2255 action, execu-
tion of his sentence was stayed pending resolution of his direct
appeal.* In any event, a movant released on his own recognizance
after conviction pending execution of the sentence is "in custody" for
purposes of habeas corpus relief. Hensley v. Municipal Court, 411
U.S. 345, 351-52 (1973); Nakell v. Attorney Gen. , 15 F.3d 319, 323
(4th Cir. 1994), cert. denied, ___ U.S. ___, 63 U.S.L.W. 3231 (U.S.
Oct. 3, 1994) (No. 94-8). Thus, the district court had jurisdiction to
consider Appellant's § 2255 motion.
The Government also argued that the § 2255 action was barred
because the issues raised by Appellant in his § 2255 motion were
identical to those raised and rejected on direct appeal. See United
States v. Parker, No. 95-5791 (4th Cir. July 10, 1996) (unpublished).
However, the record does not support the Government's contention.
Appellant raised the following issues on direct appeal: (1) whether the
trial court erred in denying Appellant's motion to suppress the record-
ing of a telephone conversation he had with a Government witness;
(2) whether the trial court erred in denying Appellant's motion to sup-
press statements he made during questioning by law enforcement offi-
cers; (3) whether the trial court abused its discretion in denying
Appellant's motion for a bill of particulars; (4) whether Appellant's
motion for a judgment of acquittal should have been granted; (5)
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*This panel denied Appellant's motion to continue the stay, and
Appellant has since been incarcerated.
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whether there was a constructive amendment of the indictment; and
(6) whether there was a variance between the allegations in the indict-
ment and the evidence produced at trial. In his§ 2255 motion, Appel-
lant raised several claims that were distinct from those raised on
direct appeal: (1) whether the testimony of Government witnesses
was coerced; (2) whether Appellant's conviction was obtained by use
of evidence obtained pursuant to an unlawful arrest; (3) whether the
Government failed to disclose favorable evidence to the Defense; and
(4) whether Appellant received ineffective assistance of counsel.
While the first three issues raised in Appellant's§ 2255 motion
may be similar to those raised on direct appeal, it is unclear from the
materials before this court whether they are identical, or even based
on the same facts. Moreover, Appellant's ineffective assistance of
counsel claim clearly was not raised on direct appeal. Therefore,
Appellant's motion cannot be dismissed wholesale based on
Boeckenhapt v. United States, 537 F.2d 1182, 1183 (4th Cir.), cert.
denied, 429 U.S. 863 (1976) (issues litigated on direct appeal are not
subject to collateral attack absent an intervening change in the law).
Accordingly, we hold that the issues raised in Appellant's § 2255
motion were ripe for the district court's consideration. We therefore
vacate the order of the district court and remand for further proceed-
ings. We dispense with oral argument because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
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