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


10-13-2000

Walker v. Govt of VI
Precedential or Non-Precedential:

Docket 99-3329




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Filed October 13, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 99-3329

CHARLES WALKER
Appellant

v.

GOVERNMENT OF THE VIRGIN ISLANDS;
EDWIN HARRIS, Warden of the Bureau of Corrections

On Appeal From the District Court of the Virgin Islands
(D.C. Civil Action No. 98-cv-00220)
District Judge: Honorable Thomas K. Moore

Argued: April 13, 2000

BEFORE: SLOVITER, ROTH and STAPLETON,
Circuit Judges

(Opinion Filed: October 13, 2000)

       Patricia Schrader-Cooke (Argued)
       Office of Federal Public Defender
       P.O. Box 3450
       Christiansted, Saint Croix
       USVI 00822
        Attorney for Appellant
       Joel H. Feld (Argued)
       Office of Attorney General of
        Virgin Islands
       Department of Justice
       48B-50 Kronprindsens Gade
       Charlotte Amalie, St. Thomas
       USVI 00802
        Attorney for Appellees

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Petitioner Charles Walker was convicted and sentenced
by the Territorial Court of the Virgin Islands for breaking
various Virgin Islands criminal laws. Following his
conviction, Walker filed a petition for a writ of habeas
corpus in the District Court of the Virgin Islands which
held that it lacked subject-matter jurisdiction over Walker's
case. Our threshold task in this appeal is to satisfy
ourselves that we have jurisdiction to entertain it. That task
requires a review of the statutes and case law governing the
litigation of habeas corpus petitions in the Virgin Islands.
We ultimately conclude that we have no jurisdiction in the
absence of a certificate of appealability issued under 28
U.S.C. S 2253(c). Because this Court has never held that a
petitioner in Walker's position must secure a certificate of
appealability in order to litigate an appeal, we will afford
him a fair opportunity to request such a certificate and to
provide support for that request. A certificate will be issued
only if Walker is able to meet the standard recently
established in Slack v. McDaniel, ___ U.S. ___, 120 S. Ct.
1595 (2000).

I.

On November 5, 1996, Charles Walker arrived in St.
Thomas, Virgin Islands, where he used stolen credit cards
to purchase approximately $16,000 in jewelry. As he
attempted to board a flight back to the mainland the
following day, he was questioned by a United States

                               2
Customs agent regarding his customs declaration form.
During the course of their discussion, the customs agent
apparently looked through Walker's wallet and discovered
credit cards that did not bear his name and then discovered
that Walker had not declared the $16,000 in jewelry that he
purchased. Walker was detained at the airport and arrested
later that same day. On November 6, 1996, the Government
of the Virgin Islands charged Walker with three counts of
credit-card fraud, in violation of 14 V.I.C. S 3004, and two
counts of possession of stolen property, in violation of 14
V.I.C. S 2101(a).

Before his trial in the Territorial Court, Walkerfiled a
suppression motion, arguing that the airport search
violated his Fourth Amendment rights. His motion was
denied,1 and he was tried and convicted of all counts. After
being sentenced to 23 years of imprisonment and a
$13,000 fine, Walker appealed to the Appellate Division of
the District Court of the Virgin Islands. Notably, that appeal
is currently pending.

Thereafter, Walker filed a petition for a writ of habeas
corpus in the District Court of the Virgin Islands. His
petition invokes 5 V.I.C. S 1303, the Virgin Islands habeas
statute, and alleges that he is in custody in violation of his
Fourth Amendment rights. The District Court dismissed the
petition for lack of jurisdiction, and Walker appealed to this
Court.

II.

Ironically, our analysis of our own jurisdiction over this
appeal requires us to start with the issue that occasions it:
whether the District Court for the Virgin Islands had
jurisdiction to entertain Walker's habeas petition. We
conclude that it did.

Section 1303 of Title 5 of the Virgin Islands Code
provides that "[t]he writ of habeas corpus may be granted
by the district court, upon petition by or on behalf of any
_________________________________________________________________

1. Petitioner also moved to suppress the identification of him by a
salesperson from the jewelry store while he was detained in a holding
cell at the airport. That motion was granted. See App. 19.

                               3
person restrained of his liberty." As we explain in the
opinion filed today in Callwood v. Enos, ___ F.3d ___ (3d
Cir. October, 2000), however, this grant of jurisdiction to
the district court was implicitly repealed on October 1,
1991, by the enactment of 4 V.I.C. S 76(a) which vested
original jurisdiction of all local civil actions in the territorial
courts of the Virgin Islands. Callwood v. Enos , ___ F.3d
____, ____ (3d Cir. October, 2000). 2 Accordingly, the District
Court properly held that it was without jurisdiction to grant
Walker relief under S 1303. But that does not end the
matter.

In 1984, Congress amended S 22 of the Revised Organic
Act3 so that it now reads: "The District Court of the Virgin
Islands shall have the jurisdiction of a District Court of the
United States, including, but not limited to, the diversity
jurisdiction provided for in section 1332 of Title 28, and
that of a bankruptcy court of the United States. . .." 48
U.S.C. S 1612(a).4
_________________________________________________________________

2. 4 V.I.C. S 76(a) provides:

        (a) Subject to the original jurisdiction conferred on the District
       Court by Section 22 of the Revised Organic Act of 1954, as
       amended, effective October 1, 1991, the Territorial Court shall
have
       original jurisdiction in all civil actions regardless of the amount
in
       controversy; to supervise and administer estates andfiduciary
       relations; to appoint and supervise guardians and trustees; to hear
       and determine juvenile, divorce, annulment and separation
       proceedings; to grant adoptions and changes of name; to establish
       paternity; to legitimize children and to make orders and decrees
       pertaining to the support of relations.

3. The United States Constitution, Article IV, Section 3, "empowers
Congress to establish all necessary rules and regulations concerning the
unincorporated territory of the Virgin Islands, including the power to
designate the jurisdiction of the District Court and the Territorial
Court."
Brow v. Farrelly, 994 F.2d 1027, 1032 (3d Cir. 1993). In 1954, Congress
exercised this power by enacting the Revised Organic Act of the Virgin
Islands, Act of July 22, 1954, ch. 558, 68 Stat. 497 (codified, as
amended, at 48 U.S.C. S 1541 et seq.), which represents the "Virgin
Islands equivalent of a constitution." Brow , 994 F.2d at 1032.

4. When first enacted, S 22 read:

       The District Court of the Virgin Islands shall have the
jurisdiction of
      a district court of the United States in all causes arising under
the

                              4
In addition, in 1984, Congress added the following
language to S 23 of the Revised Organic Act to help further
define the intended relationship between the District Court
and the Territorial Court.

       The relations between the courts established by the
       Constitution or laws of the United States and the
       courts established by local law with respect to appeals,
       certiorari, removal of causes, the issuance of writs of
       habeas corpus, and other matters or proceedings shall
       be governed by the laws of the United States pertaining
       to the relations between the courts of the United
       States, including the Supreme Court of the United
       States, and the courts of the several States in such
       matters and proceedings . . . .

48 U.S.C. S 1613 (emphasis added).

Finally, in 1984 Congress amended S 24(b) of the Revised
Organic Act so that it now reads:

       Where appropriate, the provisions of part II of Title 18
       and of Title 28, and, notwithstanding the provisions of
       rule 7(a) and of rule 54(a) of the Federal Rules of
       Criminal Procedure relating to the requirement of
       indictment and to the prosecution of criminal offenses
       in the Virgin Islands by information, respectively, the
       rules of practice heretofore or hereafter promulgated
       and made effective by the Congress or the Supreme
       Court of the United States pursuant to Titles 11, 18,
       and 28 shall apply to the district court and appeals
       therefrom . . . .

48 U.S.C. S 1614(b).

When read together, we believe that these provisions of
the Revised Organic Act establish that Congress has given
jurisdiction to the District Court of the Virgin Islands to
_________________________________________________________________

       Constitution, treaties and laws of the United States, regardless of
       the sum or value of the matter in controversy. It shall have
general
       original jurisdiction in all other causes in the Virgin Islands,
       exclusive jurisdiction over which is not conferred by this Act upon
       the inferior courts of the Virgin Islands.

Act of July 22, 1954, ch. 558, S 22, 68 Stat. 506.

                               5
issue writs of habeas corpus on behalf of persons held in
custody pursuant to a judgment of the Territorial Court.
First, S 22, as amended, affirmatively bestows on the
District Court of the Virgin Islands the entire jurisdiction of
a District Court of the United States -- the District Court
of the Virgin Islands "shall have the jurisdiction of a
District Court of the United States." 48 U.S.C.S 1612(a)
(emphasis added). Section 23 then expressly provides that,
with respect to the issuance of writs of habeas corpus, the
relationship between the District Court of the Virgin Island
and the Territorial Court shall be equivalent to the
relationship between the district courts of the United States
and the state courts. It follows a fortiori that the District
Court of the Virgin Islands has jurisdiction to grant writs of
habeas corpus to persons in custody pursuant to a
sentence of the Territorial Court.

That the District Court has such power is confirmed by
S 24(b). That provision can be read in one of two ways. It
can be understood to mean that either (1) "[w]here
appropriate, the provisions of part II of Title 18 and of [part
II of] Title 28 . . . shall apply to the district court and
appeals therefrom;" or (2) "[w]here appropriate, the
provisions of part II of Title 18 and [the provisions] of Title
28 . . . shall apply to the district court and appeals
therefrom." In short, the issue is whether the prepositional
phrase, "of Title 28," modifies the subject of the sentence,
"provisions," or whether it modifies the prepositional
phrase, "of part II." We read it to modify the former so that
Congress has specifically provided that, where appropriate,
the habeas provisions of Title 28 shall apply to the District
Court of the Virgin Islands.5
_________________________________________________________________

5. The prior version of S 24(b) read:

       The rules of practice and procedure heretofore or hereafter
       promulgated and made effective by the supreme Court of the United
       States pursuant to section 2072 of title 28, United States Code, in
       civil cases, and section 30 of the Bankruptcy Act in Bankruptcy
       cases, shall apply to the District Court of the Virgin Islands and
       appeals therefrom.

Act of July 22, 1954, c. 558, S 25, 68 Stat. 506, 507.

                               6
We reach this conclusion for two reasons: First, to the
extent that Congress desired to limit application of
S 1614(b) to Part II of Title 28, there was no need to include
an "of " before Title 28. In other words, the grammatically
preferable way of communicating that desire would have
been to say: [w]here appropriate, the provisions of part II of
Title 18 and [the provisions] of Title 28 . . . shall apply to
the district court and appeals therefrom." Second, and
more importantly, while Part II of Title 18 governs criminal
procedure, a topic clearly germane to the courts, Part II of
Title 28 addresses only the Department of Justice, with
specific chapters addressing the Attorney General, the FBI,
the U.S. Attorneys, the U.S. Marshals, the U.S. Trustees,
and the Independent Counsel. See 28 U.S.C.SS 501-99. We
can think of no reason why those provisions should apply
to the District Court of the Virgin Islands, as they are
addressed solely to the Executive Branch. Thus, we
conclude that, having vested the District Court of the Virgin
Islands with the jurisdiction of the district courts of the
United States, Congress intended all of the provisions of
Title 28, which speak to procedure, jurisdiction, venue, and
particular proceedings (e.g., habeas), to apply, "[w]here
appropriate," to the District Court of the Virgin Islands.

To recapitulate, in 1984 Congress made three significant
changes to the Revised Organic Act: (1) it unqualifiedly gave
the District Court of the Virgin Islands the entire
jurisdiction of the district courts of the United States; (2) it
specifically provided that, with respect to the granting of
writs of habeas corpus, the relationship between the
District Court of the Virgin Islands and the Territorial Court
shall be equivalent to that of the districts courts of the
United States and the courts of the several States; and (3)
it provided that, where appropriate, the provisions of Title
28 of the United States Code shall apply to the District
Court of the Virgin Islands. We now hold that, pursuant to
those amendments, S 2254 of Title 28 applies to the District
Court of the Virgin Islands so as to confer jurisdiction upon
it to entertain habeas corpus petitions from those in
custody pursuant to a judgment of the Territorial Court.

Section 2254 authorizes "a district court [to] entertain an
application for a writ of habeas corpus in behalf of a person

                               7
in custody pursuant to a judgment of a State court." Given
Congress' intent that the relations between the District
Court of the Virgin Islands and courts established by local
law should be the same as those between district courts of
the United States and state courts, we conclude that it is
"appropriate" under S 24(b) of the Revised Organic Act to
apply S 2254 to the District Court of the Virgin Islands
where the petitioner is in custody serving a sentence of the
Territorial Court.6

Of course, a prisoner may not immediately avail himself
or herself of the remedies provided by S 2254. Section
2254(b) expressly requires that "[a]n application for a writ
of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted unless
it appears that . . . the applicant has exhausted the
remedies available in the courts of the State." 28 U.S.C.
S 2254(b)(1)(A); see also Aldan, 718 F.2d at 891 ("the
requirement of exhaustion of remedies exists to avoid an
_________________________________________________________________

6. Although the applicability of S 2254 is a novel question in this
circuit,
the Ninth Circuit Court of Appeals, which has jurisdiction over the
Territory of Guam, has apparently concluded thatS 2254 applies in
cases such as this one. Precedent from the Ninth Circuit on this issue
is particularly persuasive because the jurisdictional statutes that govern
Guam are identical to those at issue here. See 48 U.S.C. S 1424(b)
(jurisdiction of the District Court of Guam); id. S 1424-2 (relationship
between the territorial courts and the District Court); id. S 1424-4
(applicability of Title 28 to the District Court of Guam). Unfortunately,
while it appears that the Ninth Circuit agrees thatS 2254 may be applied
by the District Court of Guam in its review of convictions by the Guam
territorial courts, there does not seem to be any case which specifically
addresses the issue. In Aldan v. Salas, 718 F.2d 889 (9th Cir. 1983),
petitioner sought habeas relief, pursuant to 28 U.S.C. S 2254, from his
five-year sentence imposed by the Superior Court of Guam, and the
Ninth Circuit never questioned the applicability ofS 2254. See also
People v. Taimanglo, Civ. No. 91-0017A, 1991 WL 257357, at *1 (D.
Guam App. Div. 1991) ("If Taimanglo believes that Guam has violated a
federal constitutional right, he may file a petition for a writ of habeas
corpus pursuant to 28 U.S.C. S 2254 in the District Court of Guam in its
original jurisdiction."); People v. Santos , DCA Crim. No. 85-00006A, 1985
WL 56576, at *2 (D. Guam App. Div. 1985) ("Defendant-Appellant then
filed a petition for a Writ of Habeas Corpus in the District Court of Guam
pursuant to 28 U.S.C. S 2254.").

                               8
adjudication of territorial criminal convictions by federal
authorities, wherever possible, to the end that comity may
be furthered and potential conflict avoided"); see also
Pador, 653 F.2d at 1279 ("Although Guam is a territory
rather than a state and appeals from its superior court are
to a body having federal characteristics [(the Appellate
Division)], it remains true, as it is in the case of states, that
ordinarily it is better to require the exhaustion of local
remedies before entertaining and issuing the writ of habeas
corpus.").7 As we noted at the outset, Walker's direct appeal
to the Appellate Division of the District Court is still
pending. Therefore, the District Court should have
dismissed his petition, not for lack of subject-matter
jurisdiction, but for failure to meet the exhaustion
requirement.

In reaching its conclusion that it was without
jurisdiction, the District Court relied on our decisions in Ali
v. Gibson, 572 F.2d 971 (3d Cir. 1978), and Bennett v. Soto,
850 F.2d 161 (3d Cir. 1988). While that reliance is
understandable, neither of those cases, in our view,
requires a conclusion that the District Court lacked
jurisdiction.

In 1978, we held in Ali that the District Court of the
Virgin Islands lacked jurisdiction to entertain habeas
corpus petitions under 28 U.S.C. S 2241. We reasoned:

       Section 2241(a) states that "(w)rits of habeas corpus
       may be granted by the Supreme Court, any justice
       thereof, the district courts and any circuit judge .. . ."
       District courts, as used in this section, "mean the
       courts constituted by chapter 5" of the code. 28 U.S.C.
       S 451 (1970). The District Court for the Virgin Islands
_________________________________________________________________

7. In addition, it bears noting that, while exhaustion is required by
statute in section-2254 cases, it is also required in section-2241 cases.
See Schandelmeier v. Cunningham, 819 F.2d 52, 53 (3d Cir. 1986) ("The
state exhaustion requirement is mandated by statute under 28 U.S.C.
S 2254(b) and has developed through decisional law in applying
principles of comity and federalism as to claims brought under 28 U.S.C.
S 2241."); see also Pador, 653 F.2d at 1279 ("ordinarily it is better to
require the exhaustion of local remedies before entertaining and issuing
the writ of habeas corpus.").

                               9
       is not such a court. See 28 U.S.C. SS 81-131 (1970).
       This action, therefore, could not be brought under the
       federal habeas corpus statute . . . .

Ali, 572 F.2d at 974. Because the parallel text of 28 U.S.C.
S 2254 is virtually the same, this rationale dictated a
conclusion that S 2254, like S 2241, conferred no habeas
jurisdiction on the District Court of the Virgin Islands. Ali's
holding and its implication with respect to S 2254 were
clearly correct under the law as it existed in 1978. They are
also clearly inconsistent, however, with Congress' 1984
amendments to the Revised Organic Act which dictate that
the District Court of the Virgin Islands shall have the same
habeas jurisdiction to review judgments of the Territorial
Court as the District Courts of the United States have to
review judgments of state courts. Ali was thus overruled by
Congress in 1984.

It is true, as the respondent stresses, that Ali was cited
with approval by this Court in Bennett after the 1984
amendments to the Revised Organic Act went into effect.
There, the petitioner sought to challenge the discretionary
decision by the Virgin Islands Board of Parole to revoke his
parole. The Court noted that "[o]rdinarily, a federal habeas
corpus challenge to a parole board's decision is properly
brought under 28 U.S.C. S 2241." Bennett, 850 F.2d at 163.
The Court then recognized, however, that, "as we held in
Ali, there was no jurisdictional authority for the district
court over [the] section 2241 claim." Id. Nevertheless, the
Court ultimately concluded that 5 V.I.C. S 1303 conferred
jurisdiction on the District Court to entertain the
petitioner's claim.

Bennett was a pro se case, and the 1984 amendments to
the Revised Organic Act were not brought to the attention
of the Court. They are not mentioned in the opinion. While
this fact alone does not mean that our panel is entitled to
ignore the holding in Bennett, this Court's comments
regarding Ali were not a part of the holding there. The
holding of the Court in Bennett was that it had jurisdiction
under 5 V.I.C. S 1303.8 In the course of reaching that
_________________________________________________________________

8. Bennett was decided prior to the October 1, 1991, effective date of 4
V.I.C. S 76(a) and the implied repeal of the jurisdictional grant to the
District Court in S 1303. See Callwood v. Enos, ____ F.3d ____, ____ (3d
Cir. October, 2000).

                               10
result, it rejected an argument that jurisdiction existed
under 28 U.S.C. S 2241. That rejection, however, was not
necessary to the Bennett Court's holding that it possessed
jurisdiction under S 1303, and we are, accordingly, not
bound by that rejection.

III.

With this foundation, we are in a position to directly
address the issue of our own jurisdiction. Section 2253(a)
of Title 28 provides as follows:

        In a habeas corpus proceeding [under sections 2241
       or 2254] or a proceeding under section 2255 [brought
       by prisoners in custody under sentence of a court
       established by Congress] before a district judge, the
       final order shall be subject to review, on appeal, by the
       Court of Appeals for the Circuit in which the
       proceeding is held.

Under our previously discussed reading of SS 22, 23 and
24(b) of the Revised Organic Act, it necessarily follows that
the proceeding in this case before a district judge of the
Virgin Islands was a proceeding within the scope of
S 2253(a) and that that section provides our statutory
authority for entertaining this appeal. It also follows that
our jurisdiction is limited by the provisions ofS 2253.

Section 2253 provides:

       (c)(1) Unless a circuit justice or judge issues a
       certificate of appealability, an appeal may not be taken
       to the court of appeals from --

        (A) the final order in a habeas corpus proceeding in
       which the detention complained of arises out of process
       issued by a State court; or

        (B) the final order in a proceeding under section
       2255.

       (2) A certificate of appealability may issue under
       paragraph (1) only if the applicant has made a
       substantial showing of the denial of a constitutional
       right.

                                11
28 U.S.C. S 2253(c)(1)-(2). Walker, of course, is being
detained neither by "process issued by a state court" nor
"under sentence of a court established by an Act of
Congress." He is in custody under a sentence imposed by
the Territorial Court, a court created by the Virgin Islands
legislature. Nevertheless, as we have indicated, our reading
of S 22, 23 and 24(b) of the Revised Organic Act convinces
us that Congress intended the Territorial Court of the
Virgin Islands to be treated as a state court for purposes of
the federal habeas laws. Accordingly, we hold that a person
in custody pursuant to the sentence of the Territorial Court
of the Virgin Islands who is seeking to appeal a judgment
of the District Court of the Virgin Islands denyingS 2254
relief must first obtain a certificate of appealability from
this Court.

IV.

As noted, S 2253(c) permits a court of appeals to grant
certificates of appealability "only if the applicant has made
a substantial showing of the denial of a constitutional
right." The Supreme Court has recently explained how this
provision is to be applied in a situation like this where the
District Court has denied relief without reaching the merits
of the constitutional claim and where the constitutional
claim is accordingly not the subject matter of the appeal. In
Slack v. McDaniel, ___ U.S. ___, ___, 120 S. Ct. 1595, 1604
(2000), it held: "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
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." The analysis as to whether a certificate
of appealability should issue to review a procedural
question, thus, has "two components, one directed at the
underlying constitutional claims and one directed at the
district court's procedural holding." Id.

We think it clear that "jurists of reason wouldfind it
debatable whether the district court was correct in its

                               12
procedural ruling" in this case. If the same were true of the
merits of Walker's underlying constitutional claims, we
would be inclined to treat his notice of appeal as an
application for a certificate of appealability and grant that
application. See, e.g., Miller v. New Jersey State Dep't of
Corrections, 145 F.3d 616, 617 (3d Cir. 1998). However, the
current record does not contain sufficient information to
evaluate his petition under the standard announced in
Slack. Because we have not previously held thatS 2253(c)
applies to an appeal like Walker's, we will afford him a
further opportunity to file an application for a certificate of
appealability and to provide support sufficient to meet the
standard established by Slack.

Because of the unusual context in which this case arises,
we have been required in the course of our jurisdictional
inquiry to decide the very issue that Walker seeks to have
resolved in this appeal -- the issue of whether the District
Court has jurisdiction to grant him habeas relief. This may
mean that Walker will choose not to file an application for
a certificate of appealability and, instead, take the steps
necessary to exhaust the remedies available to him other
than under S 2254. This will, of course, include whatever
steps are necessary to secure a disposition of direct appeal.
If Walker does not secure relief in that appeal, exhaustion,
as we explain in Callwood, may also require him to file a
post-conviction relief petition in the Territorial Court.9

V.

Within twenty days of the issuance of this opinion,
Walker may file with this Court an application for a
certificate of appealability and a supporting affidavit. If
such an application is not timely filed, this appeal will be
dismissed pursuant to 28 U.S.C. S 2253(c)(1).
_________________________________________________________________

9. We express no opinion on whether the District Court's order
dismissing the petition for want of jurisdiction, if not reversed or
vacated
on appeal, will have collateral consequences should Walker file another
S 2254 petition in the District Court after exhausting his other remedies.

                               13
A True Copy:
Teste:

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

                               14
