In Re: Mervyn Clinton Goddard, Movant , 170 F.3d 435 ( 1999 )

Dismissed by published opinion. Judge MICHAEL wrote the majority opinion, in which Senior Judge BUTZNER joined. Judge WILKINS wrote a dissenting opinion.

OPINION

MICHAEL, Circuit Judge:

Mervyn C. Goddard has applied to us under 28 U.S.C. § 2244(b)(3) for authorization to file a “second or successive” § 2255 motion, which would assert a substantive challenge to his sentence. Because Goddard used his first § 2255 motion solely to reinstate his right to direct appeal, that motion does not count against him. He therefore does not need our authorization.

I.

On August 23,1993, Goddard pled guilty to three counts involving federal drug offenses under 21 U.S.C. §§ 841 and 846. After receiving a presentence report and conducting a full sentencing hearing, the district court entered judgment on January 10, 1994, sentencing Goddard to 120 months in prison to be followed by ten years of supervised release. No appeal was taken from this judgment. More than two years went by, and on March 18, 1996, Goddard filed a pro se § 2255 motion in district court claiming that, despite his request, his lawyer had failed to appeal. No other claim was asserted. We need not go into the details, but the district court granted the motion after finding that Goddard missed the appeal deadline due to ineffective assistance of counsel. To give Goddard a new ten-day period for noting an appeal, the court in November 1996 entered a new judgment with the same sentence as before. Goddard then filed a timely notice of appeal.

On appeal to us Goddard claimed errors in the determination of drug quantities attributable to him for sentencing purposes. He also asserted that he had ineffective assistance of counsel in the sentencing proceedings. We affirmed Goddard’s sentence on January 28, 1998. In doing so, we declined to address the ineffective assistance issue because “the record d[id] not conclusively demonstrate ineffectiveness.” United States v. Goddard, No. 96-4885, slip op. at 6 (4th Cir. Jan. 28, 1998). We noted that the ineffective assistance claim “may be asserted in a § 2255 proceeding should Goddard choose to do so.” Id. This is where the rub comes.

Goddard filed another § 2255 motion in district court on March 16, 1998, this time alleging ineffective assistance of counsel in his sentencing proceedings, all of which took place before the entry of the original judgment. Believing that this motion was “second or successive” under § 2255, the district court said it could consider the motion only if this court authorized it under §§ 2244 and 2255, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Accordingly, the district court dismissed the motion without prejudice. Goddard then came to this court and filed a motion under § 2244 for an order authorizing the district court to consider his second § 2255 motion. We appointed counsel for Goddard and asked the parties to brief the following issue: is a subsequent motion under § 2255 “second or successive” when the first § 2255 motion was granted to afford the petitioner the opportunity to file a direct criminal appeal.

II.

Efforts to limit second or successive § 2255 motions are not new. The old statute provided that “[t]he sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” 28 U.S.C. § 2255 (1994), amended by AEDPA (1996). The new AEDPA amendments place much more stringent limits on a federal prisoner’s ability to make second or successive § 2255 motions. But the amended § 2255, just like the old section, does not define the term “second or successive.” In any event, under the AED-PA amendments a second or successive motion may be heard only if it involves newly discovered evidence that is potentially dis-positive or a new rule of constitutional law that the Supreme Court has made retroactive to eases on collateral review. See 28 U.S.C. § 2255. Moreover, before a prisoner can pursue a qualifying “second or successive” § 2255 motion, he must obtain authorization from the court of appeals. See 28 U.S.C. § 2244(b)(3).

The claim that Goddard wants to raise in his new motion — that he had an ineffective lawyer in his one sentencing proceeding — does not satisfy the new criteria for a successive attack. We therefore cannot approve his application to proceed with a “second or successive” motion. We can, however, take a look at whether his new motion must be considered as “second or successive.” If it is not, Goddard does not need our authorization to proceed, and the district court should not have dismissed the § 2255 motion he filed on March 16, 1998.

After Goddard’s first lawyer failed to appeal, Goddard filed his first § 2255 motion to have his judgment vacated and reentered so that he could take a direct appeal. His appeal was unsuccessful, so he now wants to mount a substantive collateral attack, through a new § 2255 motion, on the proceedings that led to his sentence. Again, the question is whether such a new motion is “second or successive.” The Seventh Circuit has said “no,” holding that “an order granting a § 2255 petition, and reimposing sentence [to permit a direct appeal], resets to zero the counter of collateral attacks pursued.” Shepeck v. United States, 150 F.3d 800, 801 (7th Cir.1998) (per curiam). The Tenth Circuit has taken the same position. United States v. Scott, 124 F.3d 1328, 1330 (10th Cir.1997) (per curiam) (holding that “because of the unique situation presented when the granting of the prior [§ 2255] motion merely reinstated the right to a direct appeal, the first subsequent motion is not a second or successive motion under AED-PA.”). We agree with Shepeck and Scott.

After conviction and the entry of judgment, the normal defendant in a federal criminal case may pursue a direct appeal and thereafter take “one further bite at the apple” in a § 2255 motion. See In re Davenport, 147 F.3d 605, 610 (7th Cir.1998) (Pos-ner, C.J.). Because this process got off the track for Goddard, he was forced to use his first § 2255 motion to reclaim his right to direct appeal. What happened was not Goddard’s fault. His lawyer bungled the job by failing to realize that there was yet time to note an appeal after Goddard asked for one. The only purpose of the reentered judgment, prompted by the first § 2255 motion, was to put him back in the position he would have been in had his lawyer filed a timely notice of appeal. See e.g., United States v. Peak, 992 F.2d 39 (4th Cir.1993). Goddard, however, would not be fully restored to that position if his subsequent § 2255 motion, filed after his direct appeal, is counted as “second or successive.” Under such counting a prisoner like Goddard, who was abandoned by his lawyer after sentencing, would have two options, each of which results in a limitation on his post-conviction remedies.

First, the prisoner could use his one free § 2255 motion for the sole purpose of reinstating his time for filing a notice of appeal. He then would be limited, however, to the direct appeal. Thereafter, he would be deprived of the opportunity to make a full, substantive collateral attack on his conviction and sentence. Cf. O’Connor v. United States, 133 F.3d 548, 550 (7th Cir.1998) (Easterbrook, J.) (“The idea behind § 2255 ¶8 [the successive motion provision] is that a prisoner is entitled to one, but only one, full and fair opportunity to wage a collateral attack.”) (emphasis added). In sum, a prisoner who uses his one § 2255 motion to regain his constitutional right to a direct appeal will not have a full and fair opportunity to wage a collateral attack.

Second, the prisoner in his first § 2255 motion could join his appeal reinstatement claim with all other attacks on his conviction and sentence, including those that could have been raised on direct appeal. This has real disadvantages. It forces a prisoner, without the assistance of counsel, to make the substantive objections to his conviction and sentence that his lawyer would have made for him on direct appeal. Moreover, these objections would be subjected to the more stringent standards of review that apply to collateral proceedings. If the prisoner’s substantive challenges were denied on the merits, they could not be reasserted even if he was permitted a direct appeal.¹

Either course that is forced by calling Goddard’s new motion “second or successive” puts him, solely because his first lawyer failed him, at a significant disadvantage in comparison to a defendant whose lawyer followed instructions and noted a timely appeal from the original judgment. The only effective remedy for a prisoner deprived of the right to direct appeal is twofold: allow him to use a § 2255 motion to reinstate the appeal process through reentry of judgment and allow him to raise collateral claims in a subsequent § 2255 motion filed after the direct appeal is concluded. This can only be accomplished if the § 2255 motion count starts anew when judgment is reentered to allow an appeal.

A decision not to count Goddard’s first § 2255 motion has support beyond the comparable cases of Shepeck, and Scott. Since the passage of the AEDPA amendments, other courts, including the Supreme Court, have concluded that certain § 2254 and § 2255 motions that were dismissed for reasons such as unripeness, failure to exhaust state remedies, or failure to pay filing fees are not counted in determining whether a later motion is “second or successive.” See, e.g., Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 1621, 140 L.Ed.2d 849 (1998) (holding that prisoner’s § 2254 claim that he was incompetent to be executed, which was raised in prior federal habeas proceeding but dismissed as premature, does not qualify as “second or successive” motion under the AEDPA amendments); Carlson v. Pitcher, 137 F.3d 416, 420 (6th Cir.1998) (holding that § 2254 motion filed after prior motion was dismissed for failure to exhaust state remedies is not “second or successive”); McWilliams v. Colorado, 121 F.3d 573, 575 (10th Cir.1997) (same); In re Gasery, 116 F.3d 1051, 1052 (5th Cir.1997) (same); Christy v. Horn, 115 F.3d 201, 208 (3d Cir.1997) (same); In re Turner, 101 F.3d 1323, 1323 (9th Cir.1996) (same); Dickinson v. Maine, 101 F.3d 791, 791 (1st Cir.1996) (same); Camarano v. Irvin, 98 F.3d 44, 46 (2d Cir.1996); Benton v. Washington, 106 F.3d 162, 164 (7th Cir.1996) (holding that a § 2254 motion rejected for failure to pay a filing fee should not be counted in determining whether the next motion is “second or successive”). A motion mislabeled as a § 2255 motion is likewise not counted. Chambers v. United States, 106 F.3d 472, 474 (2d Cir.1997) (holding “that a petition asserting a claim to relief available under 28 U.S.C. § 2255 is not a ‘second or successive’ application” when prior application for § 2241 relief was mislabeled as one brought under § 2255).

We borrow language from the Seventh Circuit in announcing our holding: when a prisoner’s first § 2255 motion is granted to reenter judgment and permit a direct appeal, “the counter of collateral attacks pursued” is “reset to zero.” Shepeck, 150 F.3d at 801. In this case, therefore, Goddard’s later (substantive) § 2255 motion, filed in district court on March 16, 1998, was not “second or successive,” and it should not have been dismissed. Because Goddard does not need our authorization to refile that motion, his application is dismissed.²

DISMISSED.

1 . The dissent suggests that a prisoner who was denied an appeal has another option if his first § 2255 motion is counted. According to the dissent, such a prisoner, in moving under § 2255, should assert all collateral claims but withhold issues reviewable on direct appeal; the latter issues could then “be raised on direct appeal if relief permitting a direct appeal is granted in the § 2255 proceeding.” Post at 441. The problem with the dissent's approach is that a prisoner moving to get his appeal right reinstated is proceeding without counsel. We cannot expect him to analyze his claims and make judgment calls about which ones are truly collateral and which ones are better reserved for direct appeal. Placing this burden on a prisoner who has lost his appeal rights would put him in a position inferior to that of a defendant whose lawyer filed a timely notice of appeal. In the second instance, the defendant receives the assistance of counsel in identifying issues appropriate ■for direct review before any issue has been raised unnecessarily (and ill-advisedly) in a collateral motion.

2 . The First Circuit would decide this case differently. See Pratt v. United States, 129 F.3d 54 (1st Cir.1997), cert. denied, —— U.S. -, 118 S.Ct. 1807, 140 L.Ed.2d 945 (1998). That circuit requires a prisoner to join all attacks on his judgment, including his appeal reinstatement claim, in his first § 2255 motion. The First Circuit "discern[s] no unfairness in holding [a prisoner] to this regimen” and believes it to be consistent "with the spirit of AEDPA’s restrictions on second and successive habeas petitions.” Id. at 61. We disagree. As we have indicated, such an approach severely diminishes the value of a reinstated appeal right. While the AEDPA amendments are strict, we believe they still leave room for one full collateral attack after an earlier § 2255 motion reclaimed the right to a direct appeal through reentry of judgment.