United States v. George Terrell, Jr.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
ELEVENTH CIRCUIT
_________________________ July 19, 2005
THOMAS K. KAHN
CLERK
No. 02-14997
_________________________
D.C. Docket No. 98-00268-CR-1-1-TWT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE TERRELL, JR.
Defendant-Appellant.
_____________________________
Appeal from the United States District Court
for the Northern District of Georgia
_____________________________
(July 19, 2005)
Before ANDERSON and WILSON, Circuit Judges, and JORDAN*, District Judge.
PER CURIAM:
*
Honorable Adalberto Jordan, United States District Judge for the Southern District of
Florida, sitting by designation.
George Terrell, Jr. appeals the district court’s denial of his motion to reopen
and reduce sentence. For the reasons which follow, we affirm the denial of relief as
modified.
FACTS AND PROCEDURAL HISTORY
In November of 1998, Mr. Terrell pled guilty to bank robbery. Under the
Sentencing Guidelines, Mr. Terrell had a criminal history category of VI (based on
his prior convictions) and an offense level of 22, which led to a sentencing range of
84-105 months in prison. The district court sentenced him to 84 months in prison.
Mr. Terrell did not file a direct appeal. Instead, in March of 2000, he filed a
timely motion to vacate under 28 U.S.C. § 2255, alleging ineffective assistance of
counsel. In his motion, Mr. Terrell did not challenge or otherwise attack the prior
convictions that were used in computing his criminal history category.
In March of 2001, while the motion to vacate was pending before the district
court, Mr. Terrell filed a state habeas corpus petition attacking his prior convictions.
In an order dated April 24, 2002, the district court denied the motion to vacate.
Mr. Terrell filed a timely notice of appeal on May 8, 2002. We refer to this appeal
as the “§ 2255 appeal.”
On May 9, 2002, the state court issued an order setting aside eight of Mr.
Terrell’s prior convictions. Had these eight convictions not been used to compute the
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criminal history category, Mr. Terrell’s sentencing range under the Sentencing
Guidelines would have been 46-57 months (based on a criminal history category of
II and an offense level of 22).
On June 4, 2002, while the § 2255 appeal was pending in this Court, Mr.
Terrell filed a motion to reopen and to reduce sentence in the district court. This
motion was based on the state court’s order, and Mr. Terrell asked the district court
to resentence him based upon his new criminal history category. See generally
United States v. Walker, 198 F.3d 811, 813 (11th Cir. 1999) (under § 2255, a district
court may “reopen and reduce a federal sentence, once a defendant has, in state court,
successfully attacked a prior state conviction previously used in enhancing the federal
sentence”). The district court concluded that Mr. Terrell’s motion to reopen and
reduce sentence was a second or successive motion to vacate under § 2255, and
denied it on August 14, 2002. Mr. Terrell filed a timely notice of appeal.
On November 21, 2002, this Court dismissed Mr. Terrell’s § 2255 appeal for
failure to timely file the initial brief.
In this appeal, a panel of this Court issued a certificate of appealability on
October 22, 2003. The certificate was limited to two issues: (1) whether the district
court correctly construed Mr. Terrell’s motion to reopen and reduce sentence as a
motion to vacate under § 2255; and (2) whether the district court erred in dismissing
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Mr. Terrell’s motion as second or successive.
DISCUSSION
Our review on appeal is limited to the two issues in the certificate of
appealablity. See Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998)
(“we hold that in an appeal brought by an unsuccessful habeas petitioner, appellate
review is limited to the issues specified in the COA”). As to those issues, we hold
that Mr. Terrell’s motion to reopen and reduce sentence was a motion to vacate under
§ 2255, and that the district court correctly treated it as a second or successive motion
to vacate.
A
In Gonzalez v. Crosby, ___ U.S. ___, 2005 WL 1469516, *5 (U.S. June 23,
2005), the Supreme Court held that a Rule 60(b) motion for relief from judgment in
a habeas corpus case brought under 28 U.S.C. § 2254 is properly characterized as a
second or successive petition pursuant to 28 U.S.C. § 2244(b) if, among other things,
it “seeks to add a new ground for relief.” Although Gonzalez addressed a Rule 60(b)
motion and decided the issue only under § 2254, see id. at *3 n.3, we believe that its
holding and rationale apply equally to § 2255, and that it controls the disposition of
this appeal.
In his motion to reopen and reduce sentence, Mr. Terrell sought to set aside his
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84-month sentence and obtain a lower sentence based upon the vacatur of some of his
prior state court convictions. Regardless of how Mr. Terrell characterized his motion,
see Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004), the claim he asserted
was a brand new substantive claim for relief on the merits, and one that had not been
presented in his initial § 2255 motion. The district court correctly treated the motion
to reopen and reduce sentence as a § 2255 motion to vacate, see Walker, 198 F.3d at
813, and, under Gonzalez, correctly ruled that it was a second or successive motion
to vacate.
Mr. Terrell, relying on the Second Circuit’s decision in Ching v. United States,
298 F.3d 174, 175-77 (2d Cir. 2002), argues that his motion to reopen and reduce
sentence should not have been characterized as a second or successive motion to
vacate because his appeal from the initial denial of § 2255 relief was still pending at
the time he filed the motion. According to Mr. Terrrell, his initial § 2255 motion had
not been conclusively denied by this Court, so his motion should have been construed
as a motion to amend the initial § 2255 motion.
Upon review, we believe Ching is distinguishable. In Ching the district court,
after remand, had before it both the initial § 2255 motion and a subsequent motion.
Under these circumstances, the Second Circuit held that “in general, when a § 2255
motion is filed before adjudication of an initial § 2255 motion is complete, the district
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court should construe the second § 2255 motion as a motion to amend the pending §
2255 motion.” 298 F.3d at 177. The circumstances here are different. When Mr.
Terrell filed his motion to reopen and reduce sentence, the district court had already
denied the initial § 2255 motion. In other words, there was no pending § 2255 motion
in the district court when Mr. Terrell filed his motion and, hence, there was nothing
to amend. At this time, moreover, the initial § 2255 motion is no longer pending
anywhere, and it would make no sense to remand and direct the district court to treat
the motion to reopen and reduce sentence as a motion to amend an initial § 2255
motion that no longer exists. This reading of Ching, we believe, is consistent with
subsequent Second Circuit precedent. See Whab v. United States, 408 F.3d 116, 119
(2d Cir. 2005) (where subsequent § 2255 motion will not be before the district court
together with initial § 2255 motion, because in the meantime a COA has been denied
on the initial § 2255 motion, there is “no reason . . . to instruct the district court to
treat the new petition as a motion to amend the initial petition”).
B
There is one more matter to address. When a person files a second or
successive motion to vacate without having obtained the appropriate authorization
from the court of appeals, the proper remedy is to dismiss the claims raised in the
motion. See 28 U.S.C. § 2244(b)(2)-(3). The district court properly concluded,
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consistent with the text of § 2244(b)(2-(3), that it could not hear Mr. Terrell’s motion
to reopen and reduce sentence, but it denied the motion instead of dismissing it. So
that there is no confusion should there be any later proceedings regarding Mr. Terrell,
the district court shall, on remand, modify its order to reflect that the motion is
dismissed.
CONCLUSION
The district court’s decision is affirmed as modified.
AFFIRMED AS MODIFIED.
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ANDERSON, Circuit Judge, concurs in the judgment.
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