                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-30-1999

United States v. Miller
Precedential or Non-Precedential:

Docket 97-7438




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Filed November 30, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-7438

UNITED STATES OF AMERICA

v.

QUENTIN MILLER, a/k/a "Q"
       Quentin Miller, Appellant

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Crim. No. 96-cr-00021)
District Judge: Honorable William W. Caldwell

Argued: September 22, 1999

Before: BECKER, Chief Judge, GARTH, Circuit Judge, and
POLLAK, District Judge.*

(Filed November 30, 1999)



_________________________________________________________________
* Honorable Louis H. Pollak, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
       JAMES V. WADE, ESQUIRE
       Federal Public Defender
       DANIEL I. SIEGEL, ESQUIRE
        (ARGUED)
       Assistant Federal Public Defender
       Middle District of Pennsylvania
       100 Chestnut Street, Suite 306
       Harrisburg, PA 17101

       Counsel for Appellant

       DAVID M. BARASCH, ESQUIRE
       United States Attorney
       MARTIN C. CARLSON, ESQUIRE
        (ARGUED)
       Assistant United States Attorney
       228 Walnut Street
       Harrisburg, PA 17108-1754

       Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

Quentin Miller pled guilty to conspiring to distribute
crack cocaine. After this Court reviewed the voluntariness
of Miller's plea and affirmed his sentence on direct appeal,
he filed two pro se post-conviction motions in the District
Court challenging the indictment underlying his conviction.
The District Court, acting sua sponte, recharacterized
Miller's ineptly drafted motions as a single 28 U.S.C. S 2255
motion and dismissed Miller's claims on their merits.

This kind of recharacterization poses a novel problem of
judicial administration. The Antiterrorism Effective Death
Penalty Act (AEDPA) bars federal prisoners from attacking
their convictions through second or successive habeas
corpus petitions except in very limited circumstances. See
Pub. L. No. 104-132, Title I, S 105, 110 Stat. 1214, 1220
(1996) (codified at 28 U.S.C.A. S 2255 (West Supp. 1999).
Many pro se inmate petitioners are frequent filers of

                                2
inartfully drafted post-conviction motions. Over the years,
district courts have commonly recharacterized such pro se
post-conviction motions as S 2255 motions (the statutory
means by which federal prisoners attack their sentences on
collateral review). This practice developed both for
efficiency's sake and out of a sense of fairness to pro se
petitioners, whose claims are construed quite liberally.
Under the aegis of AEDPA, however, with its sharp
limitation on second or successive petitions, if a district
court recharacterizes a pro se petitioner's poorly drafted
post-conviction motion as a S 2255 petition and dismisses
the motion on its merits, the petitioner is effectively barred
from later filing a full-fledged collateral attack upon his
conviction. Thus, under AEDPA, the practice of liberal
recharacterization that once opened the doors of the federal
courts to pro se litigants now threatens unintentionally to
close them shut.

Following the lead of the Court of Appeals for the Second
Circuit, see Adams v. United States, 155 F.3d 582 (2d Cir.
1998), we hold that district courts must first take certain
prophylactic measures before recharacterizing a pro se
petitioner's post-conviction motion as a S 2255 motion or
ruling on a S 2255 motion denominated as such. More
specifically, we prescribe that upon receipt of a pro se
pleading challenging an inmate's conviction or
incarceration--whether styled as a S 2255 motion or
not--district courts should issue a form notice to the
petitioner regarding the effect of such a pleading in light of
AEDPA. This communication should advise the petitioner
that he can (1) have his motion ruled upon as filed; (2) have
his motion recharacterized as a S 2255 motion and heard as
such, but lose his ability to file a second or successive
petitions absent certification by the court of appeals; or (3)
withdraw his petition and file one all-inclusiveS 2255
petition within the one-year statutory period prescribed by
AEDPA in S 2255.

Since the District Court did not give Miller notification of
this nature, we will set aside its decision to recharacterize
his two post-conviction motions, vacate its order of
dismissal, and remand for further proceedings consistent
with this opinion.

                               3
I.

Miller participated in a conspiracy to transport crack
cocaine from Philadelphia to York, Pennsylvania. A grand
jury returned a two-count indictment against him: one
count for distributing in excess of fifty grams of crack
cocaine, 21 U.S.C. S 841(a)(1), (b)(1)(A)(iii), and one count
for conspiring to distribute in excess of fifty grams of crack
cocaine, 21 U.S.C. S 846. Miller, assisted by counsel,
entered into a plea agreement with the government with
respect to the conspiracy charge.

Unhappy with the calculation of his sentence in the
presentence report, Miller, acting pro se, filed a letter with
the District Court in an attempt to withdraw his guilty plea
before sentencing. He asserted that his attorney had failed
to warn him that he would be treated as a career offender.
The District Court declined to hold an evidentiary hearing
on this issue and denied Miller's motion to withdraw his
plea. Miller appealed to this court, challenging the District
Court's refusal to allow him to withdraw his guilty plea,
which he claimed was involuntary because uninformed. In
a not-for-publication memorandum opinion, we rejected
Miller's argument. See United States v. Miller, No. 96-7610
(3d Cir. June 16, 1997).

Shortly after this Court's judgment, Miller, again acting
pro se, filed two post-conviction motions with the District
Court. The first motion requested the dismissal of the
underlying indictment, alleging that the prosecutor
knowingly used perjured testimony before the grand jury.
The second filing was a motion for a new trial under Fed.
R. Crim. P. 33, which was apparently based on the same
allegation of perjured testimony. As they were styled,
Miller's two motions were untimely. A motion for a new trial
and a motion to dismiss an indictment cannot be lodged
after the defendant has pled guilty and appealed that
conviction. The District Court, therefore, treated Miller's
"combined motions" as "really just one motion under 28
U.S.C. S 2255 to vacate the defendant's sentence," and
rejected them on their merits. [District Court's 8/20/97
Order at 1, reprinted in Appendix II at 29.]

Miller again sought to appeal. He argued in his
Application for a Certificate of Appealability and Brief in

                               4
Support that the indictment against him was based on
perjured testimony and that the District Court lacked
jurisdiction to hear his case. More importantly, he also
asserted that "the district court construing the motion filed
as a S 2255 motion denude[d] appellant of his right to file
a S 2255 motion to raise other viable issues that are
substantive in his case." [Application for a Certificate of
Appealability, filed 9/25/97, at 1, P 4.] He requested,

       if this court fail [sic] to reach the merits of the denial
       of the motion below, that the court will "REVERSE" the
       lower court's order construing the motion filed as a
       S 2255 motion and allow appellant the opportunity to
       file a proper S 2255 motion as of right to raise the
       viable issues that he plans to raise outside the scope of
       the previous motion to dismiss the indictment.

[Id. at 2, P 6.] Miller's appointed appellate counsel filed only
an opening brief on his client's behalf. In it, he abandoned
Miller's contention that perjured testimony was used
against him at the grand jury hearing. Instead, he raised an
ineffective-assistance-of-counsel claim, asserting that
Miller's counsel prejudiced him in failing to advise him that
he would be sentenced as a career offender.

The government makes two arguments in response. First,
it contends that Miller's ineffective-assistance-of-counsel
argument is time barred. Second, it submits that even if the
claim is timely, it has no merit.

II.

A.

The first question before us is whether the District Court
properly characterized Miller's two post-conviction motions
as 28 U.S.C. S 2255 motions.1 In addressing this question,
_________________________________________________________________

1. In its initial brief, the government assumed that the District Court
had
correctly recharacterized Miller's post-conviction motions as one S 2255
motion. Miller's counsel's initial briefing on this issue was inadequate.
We instructed both parties to submit letter memoranda addressing the
recharacterization issue, which is an important issue of judicial

                               5
we note at the outset that "federal courts have long
recognized that they have an obligation to look behind the
label of a motion filed by a pro se inmate and determine
whether the motion is, in effect, cognizable under a
different remedial statutory framework." United States v.
Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990). This
obligation stems from the time-honored practice of
construing pro se plaintiffs' pleadings liberally. See, e.g.,
Haines v. Kerner, 404 U.S. 519, 520 (1972) ("[A]llegations
such as those asserted by petitioner, however inartfully
pleaded, are sufficient to call for the opportunity to offer
supporting evidence"); Zilich v. Lucht, 981 F.2d 694, 694 (3d
Cir. 1992) ("When . . . plaintiff is a pro se litigant, we have
a special obligation to construe his complaint liberally.").

In keeping with these obligations, district courts have
"routinely converted post conviction motions of prisoners
who unsuccessfully sought relief under some other
provision of law into motions made under 28 U.S.C.S 2255
and proceeded to determine whether the prisoner was
entitled to relief under that statute." Adams v. United
States, 155 F.3d 582, 583 (2d Cir. 1998).2 Courts engaged
in this practice in order to reach the merits of pro se
petitions, while avoiding the wasted time and expense of
forcing petitioners to redraft their pleadings. Several courts
of appeals, including this one, have endorsed this approach
as fair and efficient. See, e.g., Tedford v. Hepting, 990 F.2d
_________________________________________________________________

administration and public interest in light of AEDPA, and they have
argued their respective positions effectively. Thus, we can properly reach
the issue. See Hatley v. Lockhart, 990 F.2d 1070, 1073 (8th Cir. 1993)
("we have discretion to consider issues not raised in the briefs,
`particularly where substantial public interests are involved' ")
(citation
omitted); see also United States v. Babwah, 972 F.2d 30, 35 (2d Cir.
1992) (finding it appropriate to reach an issue not raised by defendant's
counsel on appeal, in part because the government was afforded an
opportunity to argue the issue and would not be prejudiced by the
court's decision to reach it).

2. Section 2255 provides those convicted in federal courts with a means
by which to bring collateral attacks challenging the validity of their
judgment and sentence. See 28 U.S.C. S 2255. The section "was intended
to afford federal prisoners a remedy identical in scope to federal habeas
corpus." Davis v. United States, 417 U.S. 333, 343 (1974).

                               6
745, 749-50 (3d Cir. 1993) (treating S 1983 claim as
petition for writ of habeas corpus when validity of plaintiff's
criminal conviction was necessarily at issue); United States
v. Jordan, 915 F.2d 622, 625 (11th Cir. 1990)
(recharacterizing Rule 35 motion as S 2255 motion).

The District Court's recharacterization of Miller's two
post-conviction motions comports with the above-
mentioned practices. Miller alleged that he discovered new
evidence of perjured grand jury testimony that undermined
both his conviction and the indictment against him. As do
many pro se petitioners, however, Miller failed to state
these claims in a manner consistent with the federal rules
of criminal and appellate procedure. Miller's FED. R. CRIM. P.
33 motion for a new trial based on the evidence of perjured
testimony was procedurally barred.3 And his attempt to
"nullify" his conviction by filing his "Motion to Dismiss the
Underlying Indictment" suffered from similar procedural
defects; there is no general right, other than on collateral
attack, to challenge a conviction or indictment after the
defendant pleads guilty. See Tedford v. Hepting, 990 F.2d
745, 748 (3d Cir. 1993) (noting that it is "clear that if a
prisoner challenges `the fact or length of confinement,' then
his sole federal remedy is a writ of habeas corpus,SS 28
U.S.C. 2254, 2255").

B.

Had AEDPA not been enacted, the District Court's
handling of Miller's motions in this case would pose no
problem. AEDPA, however, dramatically altered the form
and timing of habeas petitions filed in the federal courts.
_________________________________________________________________

3. "By its express terms, Rule 33 is confined to those situations in which
a trial has been had." United States v. Graciani, 61 F.3d 70, 78 (1st Cir.
1995). In this case, Miller pled guilty to the conspiracy to distribute
cocaine charge. He thus waived his right to a trial and his right to
petition for a new trial. See id. ("A defendant who enters a guilty plea
cannot thereafter use Rule 33 as a wedge to undo his acknowledgment
that he committed the offense.") (citing United States v. Collins, 898
F.2d
103, 104 (9th Cir. 1989) (per curiam); United States v. Lambert, 603 F.2d
808, 809 (10th Cir. 1979); Williams v. United States, 290 F.2d 217, 218
(5th Cir. 1961) (per curiam)).

                               7
Section 2255, as amended by AEDPA, bars second or
successive habeas petitions absent exceptional
circumstances and certification by the appropriate court of
appeals. See Pub. L. 104-132, Title I, S 105, 110 Stat. 1220
(1996) (codified at 28 U.S.C.A. S 2255 (West Supp. 1999)).
Amended sections 2255 and 2244(d)(1), moreover, impose a
one-year statute of limitation on applications for writ of
habeas corpus. See id.; see also Pub. L. 104-132, Title I,
S 101, 106 Stat. 1217, 1220 (1996) (codified at 28 U.S.C.A.
S 2244(d)(1) (West Supp. 1999)). Habeas petitioners must
therefore be careful to avoid the twin procedural bars that
AEDPA has created. To avoid making successive claims,
petitioners must marshal in one S 2255 writ all the
arguments they have to collaterally attack their convictions.
And in order to avoid being time barred, they must take
care to file this one all-inclusive petition within one year of
the date on which the judgment of conviction becomes
final. Cf. infra note 9 (describing the date on which Miller's
judgment of conviction became final).

With AEDPA in place, the practice of liberally construing
post-conviction motions as S 2255 petitions can, in the
absence of cautionary or educational measures, impair the
ability of inmates to challenge their convictions on collateral
review. If each pro se post-conviction filing is treated as a
S 2255 writ, as was once the case, inept petitioners face
losing potentially valid constitutional claims at the hands of
judges who are applying a rule of liberal construction that
was created to benefit pro se claimants. This odd result has
not gone unnoticed by federal courts. The Court of Appeals
for the Second Circuit recently addressed this post-AEDPA
anomaly in Adams v. United States, 155 F.3d 582 (2d Cir.
1998) (per curiam).

Adams, an inmate acting pro se, had filed a post-
conviction Rule 12(b)(2) Motion to Dismiss, which the
district court unilaterally recharacterized as aS 2255
motion. See id. at 582-83. Adams objected to this
reconstruction and asked to withdraw the motion rather
than have it so recharacterized because he intended to file
"all his habeas claims in a single later [S 2255] motion." Id.
at 583. The district court refused this request and

                               8
dismissed Adams's claim on its merits. See id. On review,
the court of appeals held that the common practice of
automatically treating post-conviction motions as S 2255
motions should be abandoned. The court wrote, "The
[district] court's act of conversion which we approved of
under pre-AEDPA law because it was useful and harmless
might, under AEDPA's new law, become extraordinarily
harmful to prisoner's rights." Id. at 583-84. "A prisoner
convicted pursuant to unconstitutional proceedings," the
court continued, "might lose the right to have a single
petition for habeas corpus adjudicated, solely by reason of
a district court's having incorrectly recharacterized some
prior motion as one brought under S 2255." Id. at 584.

To avoid this unfairness, and consistent with the above-
mentioned practices of assisting pro se petitioners, the
court concluded that district courts must apprise
petitioners of the consequences of their petitions before the
district court can make a S 2255 recharacterization. See id.
at 583-84. The court articulated the means by which a
district court would give a pro se petitioner such notice:

       [D]istrict courts should not recharacterize a motion
       purportedly made under some other rule as a motion
       made under S 2255 unless (a) the movant, with
       knowledge of the potential adverse consequences of
       such recharacterization, agrees to have the motion so
       recharacterized, or (b) the court finds that,
       notwithstanding its designation, the motion should be
       considered as made under S 2255 because of the
       nature of the relief sought, and offers the movant the
       opportunity to withdraw the motion rather than have it
       so recharacterized.

Id. at 584 (emphasis added).

Not finding either of these two preconditions met in
Adams's case, the court of appeals vacated the district
court's decision to treat Adams's Rule 12(b)(2) motion as a
S 2255 motion. See id. at 582-84. The court reasoned that
the district court neither had "obtained Adams's informed
consent" to deem his post-conviction motion aS 2255
motion, nor had it given Adams the opportunity to
withdraw the motion rather than have it so recharacterized.

                               9
Id. at 584. The court held that Adams should be given the
opportunity to file a S 2255 motion. Given that Adams
would have had several months under AEDPA's one-year
statute of limitation to file his S 2255 motion when the
district court entered its order, the court further held that
the statute of limitations would be tolled, as "fairness
demands," in order to "afford Adams an opportunity to file
his first S 2255 motion, provided that he do so promptly."
Id. at 584 n.2. In so holding, the court counseled that
future district courts giving the Adams admonitions must
be sensitive to the one-year statute of limitations for habeas
petitions. See id.

Were the Adams test to apply here, the same result
would obtain. The District Court dismissed Miller's two
petitions without asking the government to submit a
response and without holding a hearing at which Miller was
present. Thus, without the benefit of Adams 's two-part
notice requirement, Miller had neither the opportunity to
"agree" or "disagree" that his pro se motions be
recharacterized as a single S 2255 motion, see id. at 584,
nor the "opportunity to withdraw the motion rather than
have it so recharacterized." Adams, 155 F.3d at 584.4 As
these options were not presented to Miller, Adams would
demand vacating and remanding the case to allow Miller to
file what he intended as his original and completeS 2255
motion.

Only one other court of appeals appears to have
addressed the post-AEDPA claim recharacterization issue
raised by Adams.5 The Court of Appeals for the Fifth
_________________________________________________________________

4. Courts in the Second Circuit have begun giving inmates, acting pro se,
such notice. See., e.g., United States v. Moore, 1999 WL 377258, *1 (2d
Cir. June 1, 1999) (referring to petitioner's "options" in the " `Adams
inquiry' "); Warren v. Garvin, No. 97-C3242, 1999 WL 494117, at *5 n.6
(S.D.N.Y. July 13, 1999) (discussing the "Adams admonition").

5. We note that a district court in our circuit purported to follow the
Adams rule, but seems to have misapplied it. See United States v.
Hawkins, No. CRIM. A. 93-221-01, 1998 WL 804729, at *6 (E.D. Pa.
Nov. 19, 1998). In Hawkins, the district court recharacterized Hawkins's
post-conviction petition as a S 2255 motion and, citing Adams,
recognized the problems in doing so in light of AEDPA. See id. at *6-7.
However, after saying as much, the district court failed to "offer"
Hawkins the "opportunity to withdraw [his] motion rather than have it so
recharacterized," as Adams requires. Adams, 155 F.3d at 584.

                                10
Circuit, albeit uncritically, seems to have taken the
opposite approach to the problem. In In re Tolliver, 97 F.3d
89 (5th Cir. 1996) (per curiam), petitioner requested that
the court of appeals issue an order authorizing him to file
a successive S 2255 claim. The court endorsed the district
court's unilateral decision to recharacterize Tolliver's
previous pro se motion as a S 2255 motion and held that,
since Tolliver had filed such a motion, any successive
S 2255 motion he filed needed to be certified by a court of
appeals. In reaching this holding, the court said nothing
about the fairness concerns raised in Adams regarding
such unilateral recharacterizations or AEDPA's impact on
the general practice of construing pro se petitioners'
pleading liberally.

The Fifth Circuit's opinion in Tolliver is so brief and
without elaboration that it is hard to use it as a foil to
challenge the result in Adams. To be fair to our sister
court, Tolliver was decided two years before Adams and
almost immediately after AEDPA's enactment. The Fifth
Circuit did not have the benefit of Adams's discussion, and
it does not appear that the Adams argument was raised.
Faced directly with this argument, the Tolliver court might
have decided otherwise, or at the very least explained away
the fairness concerns discussed at length in Adams.

At all events, we find Adams persuasive. First, we
recognize that the practice of recharacterizing pro se post-
conviction motions as S 2255 motions developed, in part, as
an attempt to be fair to habeas petitioners. See Adams, 155
F.3d at 583-84; see also Section II.A, supra.6 The line of
_________________________________________________________________

6. A good example of this practice is a case from the Court of Appeals for
the Tenth Circuit, decided before the enactment of AEDPA, which
recognized the fairness concerns at issue in deciding whether or not to
recharacterize pro se post-conviction pleadings. In United States v.
Warner, 23 F.3d 287, 291 (10th Cir. 1994), the court declined to
construe petitioner's Rule 32 motion as a S 2255 motion because the
petitioner did not intend the motion to be so construed, and more
importantly, "because if it was so construed," a "latter petition raising
new issues attacking the sentence would be subject to challenge as
successive." The court's attention to the rule that pro se pleadings be
construed in the pro se petitioner's favor, see id. at 290, compelled it
to

                               11
pro-se-petitioner-friendly cases endorsing liberal
recharacterizations should not be applied woodenly in such
a way as to deprive habeas petitioners of their only
opportunity to seek collateral relief. Second, the Adams
approach seems legitimately to advance Congress's
purposes in enacting AEDPA in a way that the Tolliver
approach does not. AEDPA was intended to codify the
judicial doctrine of abuse of writ. See Felkner v. Turpin, 518
U.S. 651, 664 (1996). This codified abuse of writ rule does
not suspend the writ of habeas corpus. See id. at 661-64.
Rather, it effectively creates a "modified res judicata rule,"
which prevents petitioners from relitigating habeas claims
absent exceptional circumstances. See id. at 664; id. at 657
(describing the court of appeals "gatekeeping" role in the
certification of successive claims process). The Adams
approach comports with AEDPA's gatekeeping mechanisms
by forcing federal inmates to litigate all of their collateral
claims in one S 2555 hearing--either at the time the motion
is first filed or when it is first refiled after the Adams notice
and within the statutory time limit.

Under the Tolliver approach, district courts would be free
to construe unilaterally a petitioner's first post-conviction
pleading as his S 2255 writ, effectively barring all future
writs except in the rare circumstances set out inS 2255.
Although Tolliver similarly forces the habeas action into one
hearing, this one all-important hearing would often be
meaningless because the petitioner would not have set
forth all his potentially valid constitutional claims. Put
differently, the Tolliver rule can act as a trap for unwary
petitioners who do not know that a single post-conviction
motion might bar an intended habeas writ. This result is
contrary to the notion that AEDPA's "modified res judicata
rule" and "gatekeeping" mechanism are directed toward
_________________________________________________________________

avoid a S 2255 recharacterization that only potentially would have barred
a successive appeal under the pre-AEDPA incarnation of S 2255. To
make such a recharacterization when doing so virtually guarantees that
a successive petition would be barred, see Tolliver, 97 F.3d at 90
(denying Tolliver's motion for certification of appealability under the
new
AEDPA appealability standard), seems contrary to the practice of liberal
construction.

                               12
"screening" previously litigated issues, see Felkner, 518
U.S. at 662, 664, not toward foreclosing a petitioner's
ability to raise all potential arguments in a single claim.

Persuaded by the Adams approach, we conclude that
district courts should discontinue their practice of
automatically treating pro se, post-conviction motions as
S 2255 petitions. Rather, upon receipt of pro se pleadings
challenging an inmate's conviction or
incarceration--whether styled as a S 2255 motion or not--a
district court should issue a notice to the petitioner
regarding the effect of his pleadings. This notice should
advise the petitioner that he can (1) have his motion ruled
upon as filed; (2) have his motion recharacterized as a
S 2255 motion and heard as such, but lose his ability to file
successive petitions absent certification by the court of
appeals; or (3) withdraw the petition, and file one all-
inclusive S 2255 petition within the one-year statutory
period. We strongly suggest that the District Court provide,
in its notice, that the prose petitioner has 45 days from the
date of the notice to provide the District Court with a
response.7

The rule we announce is prospective (and also narrow).
For example, a pro se petitioner who filed a pre-AEDPA
pleading, which was recast as a S 2255 motion, is bound by
_________________________________________________________________

7. We anticipate that in some cases the petitioner will fail to respond at
all to this form notice or fail to respond within the prescribed time. In
such instances, the District Court should rule on the pleadings before it,
as captioned.

We also observe that the same problem may arise in connection with
a filing by a pro se state petitioner. Although the issue is not before
us,
we observe that a district court might see fit to take similar
prophylactic
steps before recharacterizing such a filing as a petition for habeas
corpus under 28 U.S.C. S 2254, because, under AEDPA, state prisoners
face similar restrictions on filing second or successive petitions. Cf.
Copus v. City of Edgerton, 96 F.3d 1038 (7th Cir. 1996) (per curiam)
("The district court [is] not authorized to convert a S 1983 action into a
S 2254 action, a step that carries disadvantages (exhaustion and the
certificate of appealability only two among many) for litigants . . . .
When
a plaintiff files a S 1983 action that cannot be resolved without
inquiring
into the validity of confinement, the court should dismiss the suit
without prejudice.").

                               13
the provisions of AEDPA regarding second or successive
petitions. Our holdings in In re Minarik, 166 F.3d 591 (3d
Cir. 1999), and United States v. Roberson,__ F.3d __, No.
97-7309, 1999 WL 825544 (3d Cir. Oct. 14, 1999), which
require examination of pre-AEDPA abuse of writ principles
in such circumstances, offer petitioners sufficient
protection against unconstitutional retroactive application
of the AEDPA standards.

C.

Because the District Court in this case unilaterally
recharacterized Miller's post-conviction motions as a S 2255
motion despite Miller's subsequent objection, we will vacate
the Court's order and remand the case so that Miller may
make all of his collateral arguments in a singleS 2255
motion.8 AEDPA's one-year statute of limitations would
normally bar the filing of a S 2255 petition at this late date,
some two years after the judgment of conviction became
final on September 14, 1997.9 However, as Miller filed his
FED. R. CRIM. P. 33 motion and motion to dismiss on August
11, 1997--more than a month before the statute even
began to run on September 14, 1997--he would have had
more than ample time to withdraw those motions, recast
them, and include them with other arguments in a timely
S 2255 motion. Therefore, as in Adams, we will toll the
statute of limitations to afford Miller his opportunity to
_________________________________________________________________

8. We do not speculate what these claims might be, pass on their merits,
or render judgment on the ones that Miller and his counsel advanced in
the present appeal.

9. The statute began to run in Miller's case on the date "judgment of
conviction bec[ame] final." 28 U.S.C.A. S 2255. This Court rejected
Miller's direct appeal on June 16, 1997. See United States v. Miller, No.
96-7610 (3d Cir. June 16, 1997). As Miller did notfile a petition for writ
of certiorari with the Supreme Court, judgment became final and the
one-year statute of limitations began to run on the date on which Miller's
"time for filing a timely petition for certiorari review expire[d]."
Kapral v.
United States, 166 F.3d 565, 577 (3d Cir. 1999). Supreme Court Rule 13
provides that a timely petition for certiorari review must be filed within
ninety days after the entry of judgment by a United States court of
appeals. Here, that would be ninety days after June 16, 1997, or
September 14, 1997.

                               14
refile his habeas petition. See Adams, 155 F.3d at 584 n.2.
He should do so within 120 days or be barred from
reconsideration.

The government argues that permitting such a petition at
this late date would run afoul of our recent decision in
United States v Duffus, 174 F.3d 333, 337 (3d Cir. 1999),
cert. denied, 1999 WL 426458 (U.S. Oct. 4, 1999) (refusing,
in light of AEDPA, to allow an amendment to a S 2255
petition after the S 2255 one-year statute of limitations had
run, when the proposed amendment raised a new claim
arising out of a different set of facts and the facts
supporting the claim were available to the petitioner at the
time of his original filing). This case is simply different in
kind. In Duffus, the petitioner styled his original complaint
as a S 2255 motion and then tried more than a year later
to amend it to include additional claims. No unilateral act
on the part of the district court prevented Duffus from
raising all of his S 2255 claims in a timely manner.
Therefore, he was responsible for not raising all the
arguments he had to make in his original S 2255 petition
and was rightly barred by S 2255's one-year statute of
limitations.

Here, Miller seeks to file his original S 2255 complaint,
making all of his collateral claims at once, but the District
Court's sua sponte decision to recharacterize his post-
conviction motions has precluded him from doing so.
Unlike the petitioner in Duffus, Miller wanted to and would
have raised all of his S 2255 arguments in a timely fashion,
but for the District Court's intervention. Miller is not
attempting, like the petitioner in Duffus, to amend a long-
ago filed S 2255 motion; he is trying tofile his initial
petition. Therefore, he is not making an end run around
S 2255's one-year statute of limitation--as would have the
petitioner Duffus if allowed to amend his complaint--and
we do not need to bar his claim to protect the integrity of
Congress's decision to enact S 2255. See id. at 337-38.

For similar reasons, our decision to toll the statute of
limitations to afford Miller the opportunity tofile his S 2255
petition comports with our recent decision in Jones v.
Morton, __ F.3d __, No. 98-5230, 1999 WL 970797 (3d Cir.
Oct. 25, 1999). In Jones, we refused to equitably toll

                               15
AEDPA's one-year statute of limitations when the petitioner
made no showing of unfairness, e.g., that he diligently
pursued his claims and that he was prevented, in some
extraordinary way, from asserting his rights. See id. at *5-6.
Here, Miller immediately protested the District Court's
decision to recharacterize his post-conviction motions as a
S 2255 motion, and it was the District Court's unilateral act
that prevented Miller from filing his intendedS 2255 motion
in a timely fashion. To quote Jones, Miller's appeal is one
of the " `rare situations where equitable tolling is demanded
by sound legal principles as well as the interests of
justice.' " Id. at *5 (citations omitted). If in the future, a
district court failed to provide the necessary warnings
proscribed in this opinion, the statute of limitations should
similarly be tolled to allow the petitioner an opportunity to
file all of his claims in the correct manner.

For the foregoing reasons, the order of the District Court
will be vacated and the case remanded for further
proceedings consistent with this opinion.

A True Copy:
Teste:

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

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