                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-16-1998

United States v. Williams
Precedential or Non-Precedential:

Docket 98-1381




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Recommended Citation
"United States v. Williams" (1998). 1998 Decisions. Paper 250.
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Filed October 16, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1381

UNITED STATES OF AMERICA

v.

DERRICK WILLIAMS
a/k/a "Little Derrick"

       Derrick Williams,

       Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 91-00570-20)

Submitted under Third Circuit LAR 34.1(a)
October 8, 1998

BEFORE: GREENBERG, NYGAARD, and NOONAN,*
Circuit Judges

(Filed: October 16, 1998)



_________________________________________________________________

*Honorable John T. Noonan, Jr., Senior Judge of the United States Court
of Appeals for the Ninth Circuit, sitting by designation.
       Michael R. Stiles
       United States Attorney
       David Fritchey
       Assistant United States   Attorney
       Acting Chief, Organized   Crime
        Division
       Walter S. Batty, Jr.
       Assistant United States   Attorney
       Chief of Appeals
       Barbara L. Miller
       Office of United States   Attorney
       615 Chestnut Street
       Philadelphia, PA 19106

        Attorneys for Appellee

       Cheryl J. Sturm
       P.O. Box 210
       Westtown, PA 19395

        Attorney for Appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Derrick Williams appeals from an "amended order"
entered April 22, 1998, in this criminal case amending the
judgment of sentence and conviction filed November 6,
1992. The germane proceedings leading to the appeal are as
follows. On November 6, 1992, pursuant to a plea
agreement, Williams pleaded guilty to an indictment
charging him with conspiracy to possess with intent to
distribute more than five kilograms of cocaine in violation
of 21 U.S.C. S 846. The plea agreement provided for a
custodial sentence of 223 months to run concurrently with
a Pennsylvania state sentence that Williams had been
serving since June 1, 1989. Significantly, Williams was to
receive credit against his federal sentence for all time
served from June 1, 1989, in state custody. The agreement

                                 2
provided that if the district court did not accept the
agreement, it would be null and void.

The court accepted the plea agreement and sentenced
Williams on the same day he entered the guilty plea,
November 6, 1992, to a 223-month custodial term to run
concurrently with the state sentence with credit to be given
for all time served on the state sentence from June 1, 1989.
Nevertheless, on July 25, 1997, the Bureau of Prisons
wrote separate but similar letters to Williams and the
Assistant United States Attorney who had been present at
the plea and sentencing, explaining that the Bureau could
not give the credit the court had ordered because 18 U.S.C.
S 3585(b) required it to deny the credit. 1

Williams, understandably, was not satisfied with the
Bureau's position and consequently, on January 14, 1998,
he filed a motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. S 2255. In his motion, Williams
contended that the government breached the plea
agreement because (1) the Bureau of Prisons did not run
the sentence from June 1, 1989, as ordered by the court;
and (2) the United States Attorney did not notify the
Bureau of Prisons that it was required to honor the plea
agreement as incorporated in the judgment of conviction
and sentence. Moreover, Williams contended that the
conviction was obtained and sentence imposed "in violation
of [his] Sixth Amendment right to effective assistance of
counsel." Williams' theory on this point was that if the
Bureau of Prisons could not award credit against the
sentence from June 1, 1989, "it follows that defense
counsel was ineffective for persuading [him] to accept a
guilty plea with no perceptible benefits." Williams asked the
court to vacate his conviction and sentence, relief which, if
granted, would have allowed him, at his option, either to
stand trial or plead guilty again.

The government filed a response to the section 2255
motion contending that it had not breached the plea
agreement. Rather, it attributed the sentencing problem
Williams identified to a mistake in the November 6, 1992
judgment. Consequently, it proposed that the court amend
_________________________________________________________________

1. We need not detail the reasons why the Bureau took that position.

                               3
the judgment to reflect the provisions of U.S.S.G.
S 5G1.3(b), so that Williams would serve a total combined
term of imprisonment of 223 months, with credit for all
time served on the state sentence from June 1, 1989.

On April 21, 1998, the court entered an order partially
granting Williams' motion under 28 U.S.C. S 2255. The
court indicated that it would issue an amended judgment of
conviction giving him credit for the time served on the state
sentence from June 1, 1989, up to and including November
5, 1992. The order, however, denied Williams' motion to
vacate his conviction because the court held that the
government did not breach the plea agreement, as there
merely had been a mistake in the judgment that prevented
the intent of the parties and the court from being
effectuated.

After next signing one order on April 21, 1998, amending
the November 6, 1992 judgment of conviction and sentence,
the court entered a superseding "amended order" on April
22, 1998, reducing Williams' term from 223 months to 181
months and 25 days, a sentence less than the lower end of
the guideline range of 188 to 235 months that the court
had calculated was applicable at the 1992 sentencing. The
court provided that this reduced sentence would run
concurrently, beginning November 6, 1992, with the
undischarged portion of his state sentence. The court
designated the state institution where Williams was serving
the state sentence as the place for service of his federal
sentence.

The amended order also provided that the federal
sentence was not a departure from the guidelines because
Williams was being credited for guidelines purposes under
U.S.S.G. S 5G1.3(b) with 41 months and five days, the
period from June 1, 1989, to November 5, 1992. It appears
that the court entered the April 22, 1998 order amending
the judgment in response to a letter the Assistant United
States Attorney wrote the court on April 21, 1998, advising
it of language that the Bureau of Prisons wished placed in
the sentencing order for purposes of clarity. The April 22,
1998 order partially tracks that language. The district court
made no reference to a certificate of appealability in any of
its three orders.

                               4
Williams has appealed from the amended order of April
22, 1998, reducing his sentence to 181 months and 25
days. He contends that the order violated the plea
agreement, the court should have departed downward from
the guidelines range and imposed a sentence consecutive to
the state sentence to fulfill the plea agreement, his counsel
at the plea and sentencing was ineffective for permitting
him to bargain for an unenforceable agreement, and his
guilty plea was not knowing, intelligent and voluntary
because he did not receive the consideration for which he
bargained. Williams asks that his "conviction and sentence
. . . be vacated" or, "[i]n the alternative," that we remand
the matter to the district court for entry of an amended
judgment that complies with the form and language
required by the Bureau of Prisons as set forth in the April
21, 1998 letter from the Assistant United States Attorney to
the court to effectuate the parties' intent.

The government initially answers that we "lack[ ]
jurisdiction to consider . . . this appeal" because neither the
district court nor this court issued a certificate of
appealability as required by 28 U.S.C. S 2253(c)(1)(B). Br. at
8. It expands on that argument by contending that a court
of appeals cannot issue a certificate of appealability unless
the petitioner first applies to the district court for the
certificate, a step Williams did not take.

On the merits, the government argues that the district
court's April 22, 1998 order is not ambiguous and complies
with the plea agreement so that the court did not err in
declining to depart downward from the guidelines range. It
contends that Williams' real challenge is not to the district
court's order. Rather, what concerns Williams is the
possibility that the Bureau of Prisons will not carry out the
April 22, 1998 order. The government asserts that this
issue cannot be advanced in these proceedings, but
instead, if it actually arises, Williams must seek relief
through a petition for habeas corpus under 28 U.S.C.
S 2241. See Gomori v. Arnold, 533 F.2d 871, 874-75 (3d Cir.
1976). The government also argues that Williams' attorney
was not ineffective because Williams has obtained the
sentence for which he bargained. Finally, the government
contends that Williams' guilty plea was knowing and

                               5
voluntary as he obtained the sentence for which he
bargained.

Williams in his reply brief argues that while 28 U.S.C.
S 2253(c)(1)(B) provides that an appeal may not be taken
from a final order in a proceeding under 28 U.S.C. S 2255
unless a circuit justice or judge issues a certificate of
appealability, this proceeding does not come within that
category. In Williams' view, there has not been afinal
judgment here because the "order granting the[section
2255 motion] in part and denying it in part," i.e., the first
April 21, 1998 order, is not final because it"did not end the
litigation on the merits, and did not leave nothing for the
court to do but execute the judgment." Reply br. at 2, citing
Waldorf v. Shuta, 142 F.3d 601, 611 (3d Cir. 1998). In
making this argument, Williams contends that the April 22,
1998 order is a final "order amending the judgment in a
criminal case . . . not subject to the requirements of 28
U.S.C. S 2253(c)(1)(B)." Reply br. at 2.

Williams also rejects the government's argument that he
was required to apply to the district court for a certificate
of appealability. In this regard, he cites Hohn v. United
States, 118 S.Ct. 1969 (1998), in which the Supreme Court
held that it had certiorari jurisdiction to review the denial
of a certificate of appealability by a court of appeals in a 28
U.S.C. S 2255 proceeding.2 See id. at 1978. The significance
of Hohn, as Williams sees it, is that in that case even
though the petitioner did not seek a certificate of
appealability from the district court, the Supreme Court did
not suggest that the court of appeals did not have
jurisdiction.
_________________________________________________________________

2. In a situation such as that in Hohn, in which a section 2255 motion
was filed before the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), but the district court denied relief
after that date, we have held that a petitioner need not obtain a
certificate of appealability. See United States v. Skandier, 125 F.3d 178
(3d Cir. 1997). Skandier seems to reflect the prevailing view. See United
States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997), petition for cert.
filed
(U.S. Sept. 9, 1998) (No. 98-6050). The Supreme Court did not mention
this possibility in Hohn, instead, without discussion, treating the AEDPA
as applying to that case.

                               6
Williams also relies on United States v. Eyer, 113 F.3d
470 (3d Cir. 1997), in which we held that in a 28 U.S.C.
S 2255 case under the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110
Stat. 1214 (1996), a district judge could issue a certificate
of appealability under 28 U.S.C. S 2253(c)(1)(B). See id. at
473. Williams argues that there is no jurisdictional
requirement for the district court to act on a request for a
certificate of appealability because in Eyer we exercised
jurisdiction on the basis of a certificate of appealability
issued by the district court that did not indicate, as
required by 28 U.S.C. S 2253(c)(3), the specific issue
demonstrating that the petitioner made a substantial
showing of the denial of a constitutional right. See id. at
474. It thus appears that Williams does not distinguish
situations in which a district court issued a defective
certificate from those in which the court took no action at
all with respect to a certificate. Finally, Williams argues
that even if a certificate of appealability is required, his
failure to apply to the district court for a certificate "is
something in the nature of a procedural default, not a
matter of jurisdiction." Reply br. at 3.

II. DISCUSSION

Until the enactment of the AEDPA "a petitioner in federal
custody who was denied relief by a district court on a
section 2255 motion could appeal to a court of appeals
without obtaining a certificate of probable cause." Eyer, 113
F.3d at 472. On the other hand, before the AEDPA, a
petitioner challenging detention arising out of process issue
by a state court needed a certificate of probable cause to
appeal. See id. "The AEDPA changed these procedures; in
particular the Act replaced certificates of probable cause
with certificates of appealability and required prisoners in
federal custody to obtain a certificate of appealability to
appeal from the denial of relief under section 2255." Id.
Williams filed his section 2255 motion after the effective
date of the AEDPA, and consequently it ordinarily would be
clear that he would need a certificate of appealability to
appeal from a final order disposing of his motion. See
United States v. Skandier, 125 F.3d 178, 182 (3d Cir.
1997).

                               7
Williams seeks to avoid this seemingly obvious
conclusion by arguing that he is not appealing from a "final
order in a proceeding under S 2255." See 28 U.S.C.
S 2253(c)(1)(B). Rather, he claims that he is appealing from
an order amending the judgment in a criminal case. The
difficulty with this argument is that section 2255 provides
that if the movant is entitled to relief "the court shall vacate
and set the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or correct
the sentence as may appear appropriate." Of course, here
the court corrected the sentence to carry out the plea
agreement.3 Thus, it seems clear that the April 22, 1998
order was the final disposition of Williams' section 2255
motion. See Andrews v. United States, 373 U.S. 334, 339,
83 S.Ct. 1236, 1239 (1963). After all, the district court in
entering the first April 21, 1998 and April 22, 1998 orders
did exactly what section 2255 contemplates. Accordingly,
while the first order of April 21, 1998, which partially
granted Williams' section 2255 motion, was not afinal
order, as the court in that order anticipated issuing a
further order, i.e., an amended judgment of conviction, and
actually did so, the entry of the April 22, 1998 order,
modifying Williams' sentence, seemingly was a final order in
a section 2255 proceeding, as following its entry there were
no further proceedings pending or contemplated in the
district court.

Moreover, we point out that it is difficult to understand
the source of the court's jurisdiction to amend the
judgment of conviction, as it did here, except as an aspect
of the section 2255 proceeding. After all, courts do not have
freewheeling powers to amend six-year old judgments in
criminal cases.

Yet we have no need here to determine whether if
Williams merely had appealed from the sentencing aspects
of the April 22, 1998 order, we still would require a
certificate of appealability to entertain this appeal because
Williams challenges more than his sentence. As we have
indicated, he argues that his "conviction and sentence must
_________________________________________________________________

3. Our result would not be different if we characterized the April 22,
1998 order as a resentencing.

                               8
be vacated." Br. at 18. Such an outcome would be
quintessential relief in a section 2255 proceeding entitling
Williams to a new trial. Williams requests only"[i]n the
alternative" that a new form of judgment be entered.
Furthermore, in seeking the vacation of his conviction, he
relies on the argument that at the time he pleaded guilty
and was sentenced on November 6, 1992, his attorney was
ineffective and that his guilty plea was not knowing,
intelligent and voluntary. These contentions relate to
proceedings that simply cannot be characterized as an
aspect of an appeal from the April 22, 1998 order. Thus, we
cannot regard these proceedings as being nothing more
than an appeal from a sentence. Consequently, we leave for
another day the determination of whether a movant who
obtains a modified sentence on a section 2255 motion may
appeal from the new sentence without obtaining a
certificate of appealability if he seeks nothing more on the
appeal than relief from the sentence.

We recognize that Williams argues that the requirement
in 28 U.S.C. S 2253(c)(1)(B), that unless "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 on
a proceeding under section 2255" is merely procedural. We,
however, reject that argument because the language that
without a certificate "an appeal may not be taken" is
completely clear. A court entertaining an application for a
certificate of appealability has a gatekeeper's role. See
Hohn, 118 S.Ct. at 1974-75 ("We further disagree with the
contention . . . that a request to proceed before a court of
appeals should be regarded as a threshold inquiry separate
from the merits which, if denied, prevents the case from
ever being in the court of appeals."); Hohn, 118 S.Ct. at
1979 (dissenting opinion) ("By the plain language of
AEDPA, his appeal `from' the district court's `final order'
`may not be taken to the court of appeals.' ").

Our conclusion that a certificate of appealability is
required for this appeal to go forward does not necessarily
compel us to dismiss the appeal. After all, 28 U.S.C.
S 2253(c)(1)(B) empowers circuit judges to issue certificates
of appealability in section 2255 cases. The government,
however, on the basis of four cases it cites, contends that

                               9
the weight of authority supports a conclusion that a court
of appeals may not issue a certificate of appealability unless
the petitioner first unsuccessfully applies to the district
court for a certificate. See United States v. Youngblood, 116
F.3d 1113, 1114 (5th Cir. 1997); Edwards v. United States,
114 F.3d 1083, 1084 (11th Cir. 1997); Muniz v. Johnson,
114 F.3d 43, 45 (5th Cir. 1997); Lozada v. United States,
107 F.3d 1011, 1017 (2d Cir. 1997), overruled on other
grounds by United States v. Perez, 129 F.3d 255, 260 (2d
Cir. 1997), petition for cert. filed (U.S. Sept. 9, 1998) (No.
98-6050). But, as the government acknowledges, we have
"not yet addressed the issue of [our] jurisdiction to grant or
deny a [certificate of appealability] absent a ruling by the
district court on that question." Br. at 8.

The government, however, cites our local Rule 22.2 which
provides as follows:

        At the time a final order denying a petition under 28
       U.S.C. S 2255 is issued, the district judge shall make a
       determination as to whether a certificate of
       appealability should issue. If the district judge issues a
       certificate, the judge shall state the specific issue or
       issues that satisfy the criteria of 28 U.S.C. S 2253. If
       an order denying a petition under S 2254 or S 2255 is
       accompanied by an opinion or a magistrate judge's
       report, it is sufficient if the order denying the certificate
       references the opinion or report.

The government infers from Rule 22.2 that we have taken
the same position as the courts in Youngblood, Edwards,
Muniz, and Lozada. The government, though, does not take
into account that we drafted Rule 22.2 before we decided
Eyer, in which we held that a district court could issue a
certificate of appealability in a section 2255 proceeding.
Prior to Eyer that issue was unsettled in this circuit. Thus,
our committee comments to Rule 22.2, in order to avoid
deciding that legal issue inferentially, provided that "[t]his
rule takes no position on the question of whether a district
court can grant or deny a certificate of appealability."
Accordingly, it is difficult to accept an argument that Rule
22.2 requires an application first to the district court for a
certificate of appealability when the committee drafting the
rule was uncertain whether a district court even could

                               10
issue a certificate. Furthermore, Rule 22.2 simply does not
say that a circuit judge cannot issue a certificate of
appealability unless the district court first has denied the
certificate.

Nevertheless, we conclude that we need not decide
whether a petitioner first must apply to the district court
for a certificate of appealability. We recognize that the
Supreme Court in Steel Co. v. Citizens for a Better
Environment, 118 S.Ct. 1003, 1012-16 (1998), disapproved
the practice of a court of appeals, such as in Eyer, 113 F.3d
at 474-75, avoiding difficult jurisdictional questions when a
merits determination would favor the party who would
benefit if it declined to exercise jurisdiction. But if we were
to determine that we will not issue a certificate of
appealability because Williams has not demonstrated that
he is entitled to one under 28 U.S.C. S 2253(c)(3), then we
would find that this court does not have jurisdiction to go
forward in this appeal. On the other hand, if we were to
find that we cannot issue a certificate of appealability
because Williams did not apply for a certificate to the
district court, we also would determine that we do not have
jurisdiction to go forward. In these circumstances, we
conclude that Steel Co. does not preclude us from treating
Williams' notice of appeal as a request for a certificate of
appealability and then denying it on the merits without first
determining that Williams was not obliged initially to apply
to the district court for a certificate of appealability.4
_________________________________________________________________

4. Notwithstanding our disposition of this case surely, at least as a
matter of practice in cases in which the district court has not ruled on
the certificate of appealability issue in thefinal order as required by
our
local rule 22.2, an unsuccessful movant in a section 2255 case should
in the first instance seek a certificate of appealability from the
district
court. See Fitzsimmons v. Yeager, 391 F.2d 849, 851-55 (3d Cir. 1968)
(en banc). Thus, we recognize that it might be appropriate for us to
dismiss the appeal or to remand the matter to the district court for
consideration of Williams' notice of appeal as a request for a certificate
of appealability. We, however, do not do so because we believe that
Williams' attorney acted in good faith in not seeking the certificate and
the result we reach denying a certificate of appealability is quite
straightforward. Cf. Eyer, 113 F.3d at 474 (case not remanded to district
court that issued certificate of appealability to specify issues
warranting
its issuance because, inter alia, reason court issued certificate was
obvious). In the circumstances, we naturally do not wish to protract
these proceedings.

                               11
We are satisfied that Williams has not "made a
substantial showing of the denial of a constitutional right,"
28 U.S.C. S 2253(c)(2), as the government is correct that
Williams' position as to what may happen in the future is
completely speculative. Furthermore, in the unlikely
circumstance that the Bureau of Prisons does not honor
the district court's intention, Williams will be free to seek
relief under 28 U.S.C. S 2241.

III. CONCLUSION

For the foregoing reasons we conclude that we do not
have jurisdiction and the appeal will be dismissed.

A True Copy:
Teste:

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

                               12
