                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-2006

USA v. Rinaldi
Precedential or Non-Precedential: Precedential

Docket No. 04-2260




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"USA v. Rinaldi" (2006). 2006 Decisions. Paper 1007.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1007


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                                              PRECEDENTIAL


          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 04-2260


              UNITED STATES OF AMERICA,

                                v.

                    MICHAEL RINALDI,

                          Appellant.



       On Appeal From the United States District Court
           for the Middle District of Pennsylvania
                   (D.C. No. 98-cr-00294-2)
         District Judge: Honorable Edwin M. Kosik



                   Argued: January 17, 2006

   Before: ROTH, FUENTES, and BECKER, Circuit Judges.

                     (Filed: May 8, 2006)

Joseph A. O’Brien (Argued)
Oliver, Price & Rhodes
1212 South Abington Road
P.O. Box 240
Clarks Summit, PA 18411
       Attorney for Appellant



                                1
Thomas A. Marino
 United States Attorney
John C. Gurganus, Jr. (Argued)
 Assistant United States Attorney
Office of the United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18501
       Attorneys for Appellee

                   _______________________

                   OPINION OF THE COURT
                   _______________________

FUENTES, Circuit Judge.

       This case comes to us following a protracted and convoluted
series of motions filed by Michael Rinaldi as part of his effort to
collaterally attack his federal criminal sentence. Rinaldi, currently
in federal custody, appeals an order of the United States District
Court for the Middle District of Pennsylvania denying his
motion—filed pursuant to Rule 4(a)(6) of the Federal Rules of
Appellate Procedure—to reopen the time to file an appeal in his
federal habeas corpus proceeding under 28 U.S.C. § 2255. The
issue presented by this appeal is whether a certificate of
appealability (“COA”) is required to appeal the denial of a Rule
4(a)(6) motion in a § 2255 proceeding. For the reasons that follow,
we hold that a § 2255 movant must obtain a COA before appealing
an order denying such a motion. Furthermore, because Rinaldi has
failed to make the requisite showing to merit a COA, we will
dismiss his appeal.

                          I. Background

       Following a jury trial, Rinaldi was found guilty of four
counts relating to cocaine distribution and firearms possession:
conspiracy to distribute and possess with intent to distribute in
excess of five kilograms of cocaine, in violation of 21 U.S.C.
§ 846; distribution and possession with intent to distribute cocaine,
in violation of 21 U.S.C. § 841(a)(1); knowingly using and

                                 2
carrying firearms during and in relation to drug trafficking crimes,
in violation of 18 U.S.C. § 924(c); and possession of firearms by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The
District Court sentenced Rinaldi to an aggregate sentence of over
20 years in prison. We affirmed on direct appeal, and the Supreme
Court denied Rinaldi’s petition for a writ of certiorari.

        In 2001, Rinaldi filed a § 2255 habeas motion to vacate, set
aside, or correct his sentence.1 Rinaldi made a number of claims
for relief, including that his trial counsel rendered constitutionally
ineffective assistance. The District Court appointed counsel for
Rinaldi’s § 2255 proceedings and held an evidentiary hearing at
which Rinaldi’s trial counsel testified. In June of 2002, the District
Court denied Rinaldi’s § 2255 motion on the merits, and
subsequently denied his motion for reconsideration. Thereafter,
Rinaldi filed a motion seeking the issuance of a COA, which we
denied on September 3, 2003. In our order denying the COA, we
noted that Rinaldi had not made “‘a substantial showing of the
denial of a constitutional right’ on any of the claims raised in the
§ 2255 proceeding.”

       The following month, Rinaldi filed a motion in the District
Court for relief from the denial of his § 2255 motion pursuant to
Rule 60(b) of the Federal Rules of Civil Procedure.2 Rinaldi


       1
        Under Section 2255, a prisoner in federal custody under a
sentence of a court established by Congress, “may move the court
which imposed the sentence to vacate, set aside or correct the
sentence” on the grounds that “the sentence was imposed in
violation of the Constitution or laws of the United States, or that
the court was without jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” 28 U.S.C. § 2255.
       2
       Rule 60(b) of the Federal Rules of Civil Procedure
provides, in relevant part:

       On motion and upon such terms as are just, the court
       may relieve a party or a party’s legal representative
       from a final judgment, order, or proceeding for the

                                  3
attacked the integrity of his § 2255 proceeding on the ground that
the District Court should have permitted him—rather than his
court-appointed counsel—to cross-examine his trial counsel at the
evidentiary hearing. Rinaldi also challenged his conviction,
arguing that the District Court lacked jurisdiction over his criminal
prosecution and that his trial counsel was ineffective for not raising
this issue. The District Court denied Rinaldi’s Rule 60(b) motion
on November 5, 2003, noting our September 3, 2003 order denying
Rinaldi’s request for a COA.

       Thereafter, Rinaldi filed a motion pursuant to Rule 59(e) of
the Federal Rules of Civil Procedure,3 seeking reconsideration of
the District Court’s denial of his Rule 60(b) motion. Rinaldi
argued that the District Court improperly relied on this Court’s
denial of a COA with respect to the District Court’s denial of his
§ 2255 motion because the issues presented in his Rule 60(b)
motion were different from those in his § 2255 motion. The
District Court denied the motion to reconsider on December 3,
2003, two days after it was filed.

       Rinaldi’s time to appeal the denial of his Rule 59(e)



       following reasons: (1) mistake, inadvertence,
       surprise, or excusable neglect; (2) newly discovered
       evidence which by due diligence could not have
       been discovered in time to move for a new trial
       under Rule 59(b); (3) fraud (whether heretofore
       denominated intrinsic or extrinsic),
       misrepresentation, or other misconduct of an adverse
       party; (4) the judgment is void; (5) the judgment has
       been satisfied, released, or discharged, or a prior
       judgment upon which it is based has been reversed
       or otherwise vacated, or it is no longer equitable that
       the judgment should have prospective application; or
       (6) any other reason justifying relief from the
       operation of the judgment.
       3
         Rule 59(e) of the Federal Rules of Civil Procedure provides
that “[a]ny motion to alter or amend a judgment shall be filed no
later than 10 days after entry of the judgment.”

                                  4
motion—and, by extension, his Rule 60(b) motion—expired on
February 2, 2004.4 On February 11, 2004, Rinaldi filed a motion
to reopen the time in which to file his appeal of the denial of his
Rule 59(e) and Rule 60(b) motions. Rinaldi based his motion upon
Rule 4(a)(6) of the Federal Rules of Appellate Procedure, which
allows a district court to reopen the time to file an appeal if certain
conditions are satisfied.5 The District Court denied Rinaldi’s Rule
4(a)(6) motion on February 26, 2004. This appeal followed.6

       4
        Rinaldi’s Rule 59(e) motion tolled the time to appeal from
the denial of his Rule 60(b) motion. He had sixty days from
December 3, 2003, or until February 2, 2004, to file a timely
appeal.
       5
       Rule 4(a)(6) of the Federal Rules of Appellate Procedure
provides:

       Reopening the Time to File an Appeal. The district
       court may reopen the time to file an appeal for a
       period of 14 days after the date when its order to
       reopen is entered, but only if all the following
       conditions are satisfied:
       (A) the motion is filed within 180 days after the
       judgment or order is entered or within 7 days after
       the moving party receives notice of the entry,
       whichever is earlier;
       (B) the court finds that the moving party was entitled
       to notice of the entry of the judgment or order sought
       to be appealed but did not receive the notice from the
       district court or any party within 21 days after entry;
       and
       (C) the court finds that no party would be prejudiced.

Rule 4(a)(6) has since been altered by amendments that went into
effect on December 1, 2005.
       6
        Although the Government argues that we should dismiss
this appeal as untimely, we decline to do so. The docket reflects
that Rinaldi’s notice of appeal was filed on May 4, 2004. The date
on his notice of appeal, however, is April 26, 2004, within sixty
days of the order appealed. We therefore deem his filing to be

                                  5
                          II. Discussion

       Under 28 U.S.C. § 2253(c)(1)(B), “[u]nless a circuit justice
or judge issues a certificate of appealability, an appeal may not be
taken to the court of appeals from the final order in a proceeding
under section 2255.” This Court has not addressed whether a COA
is required to appeal an order denying a Rule 4(a)(6) motion in a
§ 2255 proceeding.

       Rinaldi argues that he does not need a COA to appeal the
District Court’s order denying his Rule 4(a)(6) motion because
such an order is not a “final order” under § 2253. He contends that,
if Congress intended to require a COA in appeals from any order
in a § 2255 proceeding, the statute would say so; instead, the
statutory language refers only to appeals from “the final order.”
Thus, according to Rinaldi, because the District Court’s order
denying his Rule 4(a)(6) motion is not “the final order,” he does
not need a COA to obtain appellate review of that order.

        The Government disagrees, contending that the term “final
order” in § 2253(b)(1)(B) is not limited to the order denying the
§ 2255 motion. The Government notes that an appeal from the
denial of a Rule 60(b) motion in a § 2254 habeas proceeding
requires a COA, see Morris v. Horn, 187 F.3d 333, 339 (3d Cir.
1999), and that the COA requirement also applies to the dismissal
of a § 2254 habeas petition on procedural grounds, see Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The Government further
argues that application of the COA requirement to appeals of Rule
4(a)(6) motions accords with congressional intent to limit habeas
litigation.

       We agree with the Government’s view. As a general matter,
an order denying a Rule 4(a)(6) motion is a “final decision” for
purposes of appeal. 28 U.S.C. § 1291. Furthermore, we believe
that requiring a § 2255 movant to obtain a COA to appeal the


timely. See Houston v. Lack, 487 U.S. 266, 276 (1988) (holding
that a filing by a prisoner be deemed timely as of the date it is
handed to prison officials for delivery).

                                 6
denial of a Rule 4(a)(6) motion comports with the language of
§ 2253 and is consistent with Congress’s intent to screen out
meritless appeals from denials of habeas relief. We therefore hold
that an order denying a Rule 4(a)(6) motion is a “final order” under
§ 2253, and that a COA is required to appeal such an order in a
§ 2255 proceeding. See Eltayib v. United States, 294 F.3d 397,
399 (2d Cir. 2002) (holding that a COA is necessary to obtain
appellate review of an order denying a Rule 4(a)(6) motion in a
habeas proceeding); cf. Greenawalt v. Stewart, 105 F.3d 1268,
1272 (9th Cir. 1997) (holding that a certificate of probable
cause—a precursor to the COA—is necessary to obtain appellate
review of an order denying a Rule 4(a)(6) motion in a habeas
proceeding), abrogated on other grounds recognized by Jackson v.
Roe, 425 F.3d 654, 658-61 (9th Cir. 2005).

        We turn next to whether Rinaldi has made the requisite
showing to merit a COA. “A certificate of appealability may issue
. . . only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As the
Second Circuit pointed out in Eltayib, where the substance of the
appeal underlying a Rule 4(a)(6) motion is without merit, to grant
a COA with respect to the district court’s denial of the Rule 4(a)(6)
motion would be a waste of judicial resources. See Eltayib, 294
F.3d at 400 (“[B]y definition, a successful appeal of the denial of
the [Rule 4(a)(6) motion] would, at best, result in the ultimate
denial by this Court of a subsequent (and now timely) motion for
a certificate of appealability with respect to the original order
disposing of the motion pursuant to § 2255.”). In order to avoid
such an outcome, we will grant a COA to challenge the denial of
a Rule 4(a)(6) motion only if the § 2255 movant shows: (1) that
jurists of reason would find it debatable whether the district court
abused its discretion in denying the Rule 4(a)(6) motion; and (2)
that jurists of reason would find the district court’s assessment of
the constitutional claims in the underlying order debatable or
wrong.

       Rinaldi has failed to make the requisite showing. Even if he
were able to show that the District Court abused its discretion when
it denied his Rule 4(a)(6) motion, Rinaldi has not satisfied the
second prong of the two-part test. In his Rule 60(b) motion,
Rinaldi argued: first, that the District Court should have permitted

                                 7
him—not his court-appointed counsel—to cross-examine his trial
counsel at the evidentiary hearing, and second, that the District
Court lacked jurisdiction over his criminal prosecution and that his
trial counsel was ineffective for not raising that issue. Based on
our review of the record, we conclude that Rinaldi has failed to
show that jurists of reason would find the District Court’s
assessment of the constitutional claims underlying his Rule 60(b)
motion debatable or wrong.7 For this reason, we will not issue a
COA with respect to the District Court’s denial of Rinaldi’s Rule
4(a)(6) motion.

                          III. Conclusion

      For the reasons stated above, we hold that a § 2255 movant
must obtain a certificate of appealability in order to appeal an order
denying a motion pursuant to Rule 4(a)(6) of the Federal Rules of
Appellate Procedure. Because Rinaldi has failed to make a
showing that reasonable jurists would find the District Court’s
assessment of the claims raised in his Rule 60(b) motion debatable
or wrong, we will not issue a COA and we will dismiss his appeal.




       7
        As Rinaldi’s current attorney conceded at oral argument,
Rinaldi has failed to state what questions he was precluded from
asking at his evidentiary hearing, or to explain how he was
prejudiced. The District Court also properly rejected Rinaldi’s
jurisdictional argument because it constitutes a second or
successive collateral attack on his underlying conviction, which we
have not authorized the District Court to consider. See 28 U.S.C.
§ 2244; Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004).

                                  8
