                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-24-2000

United States v. Brooks
Precedential or Non-Precedential:

Docket 98-7419 & 99-8043




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Recommended Citation
"United States v. Brooks" (2000). 2000 Decisions. Paper 227.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/227


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Filed October 23, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NOS. 98-7419 and 99-8043

UNITED STATES OF AMERICA

v.

LAWRENCE BROOKS
Appellant in No. 98-7419

IN RE: LAWRENCE BROOKS
Petitioner in No. 99-8043

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Crim. Action No. 92-cr-00303-2)
District Judge: Honorable William W. Caldwell

Argued February 28, 2000

BEFORE: ALITO and STAPLETON, Circuit Judges,
and POLLAK,* District Judge

(Filed October 23, 2000)



_________________________________________________________________
* Honorable Louis H. Pollak, Senior United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
       Kim D. Daniel
       Theodore B. Smith, III (Argued)
       Office of United States Attorney
       Federal Building
       228 Walnut Street
       P.O. Box 11754
       Harrisburg, PA 17108
        Attorney for Appellee

       Daniel I. Siegel (Argued)
       Office of Federal Public Defender
       100 Chestnut Street
       Harrisburg, PA 17101
        Attorney for Appellant

       Peter Goldberger
       50 Rittenhouse Place
       Ardmore, PA 19003-2276
        Attorney for Amicus-appellant
       National Association of
       Criminal Defense Lawyers

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Lawrence Brooks filed a petition for a writ of habeas
corpus, pursuant to 28 U.S.C. S 2255, seeking
reinstatement of his right to appeal his conviction on the
ground that the District Court failed to inform him of his
appellate rights in violation of the Federal Rules of Criminal
Procedure. After a full hearing on the merits, the District
Court denied Brooks' petition, and Brooks has appealed.
We will deny Brooks' request for a certificate of
appealability and dismiss his petition for a writ of habeas
corpus, filed with this Court pursuant to 28 U.S.C. S 2241.

I.

In 1993, Lawrence Brooks pleaded guilty to participation
in a drug conspiracy and received a sentence of 24 years
and 4 months of imprisonment. According to former Rule

                               2
32(a)(2) of the Federal Rules of Criminal Procedure, 1 the
District Court was required, after imposing sentence, to
advise the defendant of his right to appeal. The District
Court failed to so advise Brooks, and no direct appeal was
filed. In 1997, Brooks filed a motion for post-conviction
relief under 28 U.S.C. S 2255, seeking, inter alia,
reinstatement of his right to a direct appeal.

Brooks filed his motion for post-conviction relief pro se.
In his motion, Brooks raised 11 separate grounds for relief,
and ultimately the District Court appointed the Federal
Public Defender to represent Brooks. His attorney then filed
an amended motion for post-conviction relief, which
clarified the "loss of appellate rights" claim.

On April 28, 1998, an evidentiary hearing was held
before the District Court for the Middle District of
Pennsylvania. At that hearing, Brooks himself testified, as
did his appointed trial counsel, Jeffrey Yoffee. Brooks
testified that the Court failed to advise him of his right to
appeal, and that fact is undisputed. He further testified
that his attorney had not advised him of the right to file an
appeal, either at the courthouse following sentencing or at
any time during the ten-day period following the sentencing
hearing. Finally, Brooks testified that, if he had known of
his right to appeal, he would have instructed counsel to file
one.

Yoffee testified that he had no specific recollection of
advising Brooks of his appellate rights, either on the day of
sentencing or in the ten days following. Yoffee confirmed
that he did not have any notes or memoranda reflecting
that he had advised Brooks of his appellate rights. What
Yoffee did say, and it is this fact on which the District
Court seized, is that it was his customary practice,
following a sentencing hearing, to inform clients of their
right to appeal. Specifically, Yoffee said:

       It is [my customary practice to inform defendants of
       their appellate rights after the sentencing hearing] and
       I believe I had a conversation with Mr. Brooks after
       sentencing up in the holding cell regarding his
_________________________________________________________________

1. The Rule is now in subsection (c)(5) of Rule 32.

                                3
       appellate rights, but to be honest with you, I can't be
       sure if I'm filling in the blanks or whether my
       recollection of it is actually a true one. All I can say is
       I routinely in federal cases especially go to the holding
       cell after a sentence and speak with my client not just
       about appellate rights but that's generally the end of
       the case. I say if you have any questions, give me a
       call, that kind of thing. I'm almost certain that I did
       with Mr. Brooks, but I can't positively remember that
       I did.

App. 82-83 (direct testimony). He further testified that, if a
defendant requests an appeal, he files that appeal,
regardless of the grounds.

On cross-examination by the prosecutor, Yoffee
confirmed that he "strongly believed" that he had advised
Brooks of his appellate rights. See App. 106-07. He agreed
with the prosecutor that he "most likely" would have done
so immediately after sentencing. In this regard, Yoffee noted
that he had billed the court for a three-tenths of one hour
meeting with Brooks on the date of sentencing.
Nevertheless, there are no notations in his files regarding
conversations with Brooks during the ten-day window in
which to file a notice of appeal. Brooks asserts that this
omission is significant, "because on a later occasion, Mr.
Yoffee did make a note of a communication from Mr.
Brooks regarding his desire for an appeal."2 Brief for
Appellant at 14.

After hearing all of the evidence, the District Court denied
Brooks' motion for post-conviction relief. The Court found
that it had failed to advise Brooks of his right to an appeal
and further found that Yoffee had "no independent
recollection of advising the defendant of his right to appeal
. . . ." App. 165. Nevertheless, the Court was persuaded
that Yoffee had advised Brooks of his appellate rights and,
thus, that the Court's failure to do so constituted harmless
error.
_________________________________________________________________

2. The note was made in January, 1994, some four months after the
sentencing hearing. At that time, Brooks called or wrote Yoffee to express
his desire to appeal his sentence.

                               4
Brooks appealed to this Court, seeking a certificate of
appealability to review the District Court's judgment. In the
alternative, Brooks has filed an original petition for a writ
of habeas corpus with this Court, pursuant to 28 U.S.C.
S 2241, arguing that, if we deny his request for a certificate
of appealability, we nevertheless exercise our power under
S 2241 to review his claims.

II.

The first issue -- i.e., whether we will grant Brooks'
request for a certificate of appealability -- need not detain
us long. Section 2253(c)(1) of Title 28 provides that "an
appeal may not be taken to the court of appeals from. . .
the final order in a proceeding under section 2255. . .
[u]nless a circuit justice or judge issues a certificate of
appealability . . . ." 28 U.S.C. S 2253(c)(1)(B). Section
2253(c)(2) then goes on to provide that "[a] certificate of
appealability may issue . . . only if the applicant has made
a substantial showing of the denial of a constitutional right."
Id. S 2253(c)(2) (emphasis added). Brooks has argued that,
while S 2253(c)(2) seemingly permits us to review only
constitutional questions, we should, nevertheless, hold that
certificates of appealability may be awarded in cases
presenting substantial federal, but non-constitutional,
questions. A panel of this Court heard argument on that
issue on February 28, 2000, and then, a majority of the
active judges having voted for rehearing, the issue was
reargued before the Court en banc on May 24, 2000.

This case was reargued en banc along with United States
v. Cepero, ___ F.3d ___, 2000 WL ____ (3d Cir. 2000), which
presented the same issue. Following the en banc Court's
decision in Cepero, this case was remanded to the original
merits panel for final disposition. As we held in Cepero, we
may not grant a certificate of appealability to review non-
constitutional questions unless the issue is procedural and
the underlying petition raises a substantial constitutional
question. Accord Slack v. McDaniel, ___ U.S. ___, ___, 120 S.
Ct. 1595, 1604 (2000) ("When the district court denies a
habeas petition on procedural grounds without reaching
the prisoner's underlying constitutional claim, a[certificate
of appealability] should issue when the prisoner shows, at

                               5
least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.") (emphasis added). It is conceded here
that Brooks' only claim, which is based on Rule 32 of the
Federal Rules of Criminal Procedure, is not a constitutional
claim. Accordingly, we are constrained to deny Brooks'
request for a certificate of appealability, and the District
Court's judgment will, thus, stand.

III.

Apparently recognizing the difficulty in overcoming the
language of 28 U.S.C. S 2253(c)(2), Brooks hasfiled an
original petition for a writ of habeas corpus with this Court,
pursuant to 28 U.S.C. S 2241. He asks that, if we hold, as
we have, that we are unable to review the District Court's
judgment in the S 2255 proceeding, we, nevertheless,
exercise our power under S 2241 to adjudicate his
application for a writ of habeas corpus as an original matter.3
_________________________________________________________________

3. Section 2241(a) provides that "[w]rits of habeas corpus may be granted
by the Supreme Court, any justice thereof, the district courts and any
circuit judge within their respective jurisdictions." The courts of
appeals
are conspicuously absent from that enumeration, and the circuit courts
have uniformly disclaimed power, as courts, to issue an original writ of
habeas corpus. See Carriger v. Lewis, 971 F.2d 329, 332 (9th Cir. 1992)
(en banc) (panel does not have jurisdiction to entertain an original
petition for a writ of habeas corpus); Noriega-Sandoval v. INS, 911 F.2d
258, 261 (9th Cir. 1990) (We . . . lack jurisdiction as a court to
consider
a petition for a writ of habeas corpus as an original matter."); Ojeda
Rios
v. Wigen, 863 F.2d 196, 200 (2d Cir. 1988) (Chambers of Judge
Newman) (courts of appeals have no power to issue an original writ of
habeas corpus); Zimmerman v. Spears, 656 F.2d 310, 316 (5th Cir. 1977)
(same); Parker v. Sigler, 419 F.2d 827, 828 (8th Cir. 1969); Loum v.
Alvis,
263 F.2d 836 (6th Cir. 1959); Posey v. Dowd, 134 F.2d 613 (7th Cir.
1943); see also United States ex rel. Leguillou v. Davis, 212 F.2d 681 (3d
Cir. 1954) (an appeal from a final order of a circuit judge entered after
full hearing on a petition for habeas corpus under 28 U.S.C. S 2241).
There is a minor exception: a court of appeals has the power, under the
"all writs" act, to issue a writ of habeas corpus "where it may be
necessary for the exercise of a jurisdiction already existing." Whitney v.

                               6
As we will explain, we hold that S 2241 is not available as
a remedy for Brooks.

Section 2255 provides, in pertinent part:

       An application for a writ of habeas corpus in behalf of
       a prisoner who is authorized to apply for relief by
       motion pursuant to this section, shall not be
       entertained if it appears that the applicant has failed to
       apply for relief, by motion, to the court which
       sentenced him, or that such court has denied him
       relief, unless it also appears that the remedy by motion
       is inadequate or ineffective to test the legality of his
       detention.

28 U.S.C. S 2255, P 5 (emphasis added). Thus, in a
situation where the S 2255 procedure is shown to be
"inadequate or ineffective," a prisoner is entitled to apply for
a writ of habeas corpus, and courts are empowered to grant
the writ by 28 U.S.C. S 2241. See United States v. Hayman,
342 U.S. 205, 223 (1952).

We recently considered the scope of the "inadequate or
ineffective" "safety valve" in S 2255 in In re Dorsainvil, 119
F.3d 245 (3d Cir. 1997). In Dorsainvil, the petitioner argued
that the Supreme Court's decision in Bailey v. United
States, 516 U.S. 137 (1995), which was decided after
Dorsainvil's first S 2255 petition was denied on the merits,
rendered his weapons conviction under 18 U.S.C.
S 924(c)(1) invalid. He wished to collaterally attack that
conviction in the District Court and asked this Court to
certify his second habeas petition under S 2255's
gatekeeping provisions limiting a prisoner's ability to file a
successive habeas petition. The Court first held that the
petition had failed to satisfy those gatekeeping provisions
because his Bailey claim was a statutory claim. As a result,
_________________________________________________________________

Dick, 202 U.S. 132, 136-37 (1906). However, in this case, because we
have no appellate jurisdiction, that exception, which usually applies
when a court of appeals is fashioning a remedy, is inapplicable.
Accordingly, as a panel, we are without jurisdiction to issue Brooks a
writ of habeas corpus. We raise the issue only for the purposes of
clarification, however, because as we will explain, we ultimately hold
S 2241 does not afford Brooks a remedy.

                               7
petitioner was unable to bring his new claim in aS 2255
proceeding in the District Court.

The Court did not stop there, however. Dorsainvil argued
that if his Bailey claim could not be heard in the District
Court, then S 2255, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No.
104-132, 110 Stat. 1214 (1996), was unconstitutional. The
Court avoided reaching the "thorny constitutional issue[s]"
by holding that "under narrow circumstances, a petitioner
in Dorsainvil's uncommon situation may resort to the writ
of habeas corpus as codified under 28 U.S.C. S 2241."
Dorsainvil, 119 F.3d at 248. The Court first recognized that
"the AEDPA did not amend the `safety valve' clause in
S 2255 that refers to the power of the federal courts to grant
writs of habeas corpus pursuant to S 2241" where S 2255 is
"inadequate or ineffective." Id. at 249. The Court then held:

       Dorsainvil does not have and, because of the
       circumstances that he was convicted for a violation of
       S 924(c)(1) before the Bailey decision, never had an
       opportunity to challenge his conviction as inconsistent
       with the Supreme Court's interpretation of S 924(c)(1).
       If, as the Supreme Court stated in [Davis v. United
       States, 417 U.S. 333 (1974)], it is a "complete
       miscarriage of justice" to punish a defendant for an act
       that the law does not make criminal, thereby
       warranting resort to the collateral remedy afforded by
       S 2255, it must follow that it is the same"complete
       miscarriage of justice" when the AEDPA amendment to
       S 2255 makes that collateral remedy unavailable. In
       that unusual circumstance, the remedy afforded by
       S 2255 is "inadequate or ineffective" to test the legality
       of [Dorsainvil's] detention.

Id. at 251.

The Court then cautioned:

       We do not suggest that S 2255 would be "inadequate or
       ineffective" so as to enable a second petitioner to
       invoke S 2241 merely because that petitioner is unable
       to meet the stringent gatekeeping requirements of the
       amended S 2255. Such a holding would effectively
       eviscerate Congress's intent in amending S 2255.

                               8
       However, allowing someone in Dorsainvil's unusual
       position -- that of a prisoner who had no earlier
       opportunity to challenge his conviction for a crime that
       an intervening change in substantive law may negate,
       even when the government concedes that such a
       change should be applied retroactively -- is hardly
       likely to undermine the gatekeeping provisions of
       S 2255.

Id. at 251.

Several of our sister circuits have likewise concluded that
S 2241 can, at times, provide an avenue for relief where
none would otherwise be available. See Charles v. Chandler,
180 F.3d 753 (6th Cir. 1999); Wofford v. Scott , 177 F.3d
1236 (11th Cir. 1999); United States v. Barrett , 178 F.3d 34
(1st Cir. 1999); In re Davenport, 147 F.3d 605 (7th Cir.
1998); Triestman v. United States, 124 F.3d 361 (2d Cir.
1997). Indeed, a common theme is evident in the circuit
court opinions addressing the availability of S 2241: in
those cases in which recourse to S 2241 is granted, the
petitioner would have no other means of having his or her
claim heard. See Dorsainvil, 119 F.3d at 251 (authorizing
relief under S 2241 for "a prisoner who had no earlier
opportunity to challenge his conviction for a crime that an
intervening change in substantive law may negate")
(emphasis added); see also Wofford, 177 F.3d at 1244
(prisoner may avail himself or herself of S 2241 if "the
prisoner had no reasonable opportunity for a judicial
remedy of [a] fundamental defect before filing the S 2241
proceeding"); Davenport, 147 F.3d at 611 ("A federal
prisoner should be permitted to seek habeas corpus only if
he had no reasonable opportunity to obtain an earlier
judicial correction of a fundamental defect in his conviction
or sentence because the law changed after his first 2255
motion."); Triestman, 124 F.3d at 377 (the "inadequate or
ineffective" safety valve in S 2255 is available only in "the
set of cases in which the petitioner cannot, for whatever
reason, utilize S 2255, and in which the failure to allow for
collateral review would raise serious constitutional
questions").

In this case, Brooks received a full evidentiary hearing on
the merits of the very claim for which he seeks relief under

                               9
S 2241. It has long been the rule in this circuit that "the
remedy by motion [under S 2255] can be`inadequate or
ineffective to test the legality of . . . detention' only if it can
be shown that some limitation of scope or procedure would
prevent a Section 2255 proceeding from affording the
prisoner a full hearing and adjudication of his claim of
wrongful detention." United States ex rel. Leguillou v. Davis,
212 F.2d 681, 684 (3d Cir. 1954). Indeed, Brooks does not
argue that his hearing before the District Court was in any
way defective or not meaningful. Nor does he contend that
the District Court was without authority to grant the full
relief he sought. Rather, his only argument as to why his
S 2255 remedies were "inadequate or ineffective to test the
legality of his detention" relates to his inability to appeal
the District Court's decision.

The fundamental problem with Brooks' argument is that
it was Congress' express decision (as seen in the language
of S 2253(c)(2)) to deny Brooks a right to appeal, and as we
explained in Cepero, that decision was a valid exercise of
Congress' power. Therefore, if we were to hold that Brooks
can effectively seek review of the District Court's decision in
this Court pursuant to our power under S 2241, we would
be eviscerating Congress' intent in amending S 2253. That
is something we are unwilling to do. See Dorsainvil, 119
F.3d at 251 ("We do not suggest that S 2255 would be
`inadequate or ineffective' so as to enable a second
petitioner to invoke S 2241 merely because that petitioner is
unable to meet the stringent gatekeeping requirements of
the amended S 2255. Such a holding would effectively
eviscerate Congress's intent in amending S 2255."); see also
Barrett, 178 F.3d at 50 ("A petition underS 2255 cannot
become `inadequate or ineffective,' thus permitting the use
of S 2241, merely because a petitioner cannot meet the
AEDPA `second or successive' requirements. Such a result
would make Congress's AEDPA amendment of S 2255 a
meaningless gesture."); Davenport, 147 F.3d at 608
("Congress did not change [the `inadequate or ineffective']
language when in the Antiterrorism Act it imposed
limitations on the filing of successive 2255 motions. The
retention of the old language opens the way to the
argument that when the new limitations prevent the
prisoner from obtaining relief under 2255, his remedy

                               10
under that section is inadequate and he may turn to 2241.
That can't be right; it would nullify the limitations.");
Triestman, 124 F.3d at 376 ("If it were the case that any
prisoner who is prevented from bringing a S 2255 petition
could, without more, establish that S 2255 is`inadequate or
ineffective,' . . . then Congress would have accomplished
nothing at all in its attempts -- through statutes like the
AEDPA -- to place limits on federal collateral review."); In re
Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997) (en banc)
(stating that S 2255 is not inadequate or ineffective simply
"because an individual is procedurally barred from filing a
S 2255 motion").

In conclusion, because Brooks did have a meaningful
opportunity to present his claim to the District Court, his
S 2255 remedy cannot be said to be either inadequate or
ineffective. If we were to hold that the unavailability of an
appeal under S 2253(c)(2) rendered Brooks'S 2255 remedies
inadequate or ineffective, we would be undermining a valid
act of Congress. Accordingly, we will deny Brooks'S 2241
petition for a writ of habeas corpus.

IV.

For the reasons stated herein, we will deny Brooks'
request for a certificate of appealability and also will
dismiss his original petition for a writ of habeas corpus.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                11
