                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               MAY 6 1998
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk
 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                            Case No. 97-4172
 v.
                                                          (D.C. No. 94-CV-134)
                                                            (District of Utah)
 CHARLES GRANT CAMPBELL,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before PORFILIO, KELLY, and HENRY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Charles Grant Campbell appeals the district court’s dismissal of his first 28

U.S.C. § 2255 petition in which he claims he improperly received a two-point

acceptance of responsibility reduction in his offense level rather than the requisite



      *
               This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
three-point reduction. Mr. Campbell argues, somewhat paradoxically, that the

sentencing court, which granted him a sentence reduction (apparently using Fed.

R. Crim. P. 36), was without jurisdiction to do so. Thus, he argues that we must

remand for re-sentencing. Mr. Campbell also asks that we allow him to amend

his first § 2255 petition to state an ineffective assistance of counsel claim that he

would have sought to raise by amending this petition, had he known it was still

pending.

A.    Mr. Campbell pleads guilty and is sentenced incorrectly.

      Mr. Campbell pled guilty to nine counts of bank robbery and related

charges in contravention of 18 U.S.C. § 2113 and accepted responsibility for his

crimes. The 1992 edition of the Guidelines afforded Mr. Campbell a three-level

reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1 (1992), but the

probation officer preparing the presentence report (PSR) mistakenly used the

1991 edition, which gave Mr. Campbell only a two-level reduction. At Mr.

Campbell’s sentencing hearing on December 2, 1992, none of the parties objected

to the incorrect PSR, and the district court adopted its recommendations,

sentencing Mr. Campbell to 120 months imprisonment--ten months longer than

provided by the correct year’s Guidelines. Mr. Campbell did not file a direct

appeal.




                                          -2-
B.    The district court attempts, unsuccessfully, to correct the sentence,
      but doesn’t tell Mr. Campbell.

      On June 22, 1993, more than six months after it sentenced Mr. Campbell,

the district court, apparently sua sponte, signed an Amended Judgment in a

Criminal Case which adjusted Mr. Campbell’s sentence from 120 to 110 months

imprisonment. The district court did not inform Mr. Campbell that it had taken

this action.



C.    Mr. Campbell discovers the error in his sentence and files this habeas
      petition, which is referred to the magistrate.

      On February 7, 1994, after discovering the error in his sentence, Mr.

Campbell filed the instant § 2255 petition. He alleged, among other claims,

ineffective assistance of counsel because his attorney did not object to the clearly

incorrect PSR. On February 10, 1994, the sentencing judge referred the petition

to the magistrate judge, who did not act upon it until July 28, 1997, some three-

and-a-half years later.



D.    The district court sends Mr. Campbell a letter informing him he had
      already received the relief sought in this habeas petition.

      While this habeas petition was pending with the magistrate judge, the

district court sent Mr. Campbell a letter dated June 12, 1995, which reads:




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             In response to [your § 2255] [p]etition, I enclose a certified
      copy of the Amended Judgment in a Criminal Case, signed by me on
      June 22, 1993 . . . . As you can see, this includes a term of one
      hundred ten (110) months imprisonment. It is the final judgment of
      this court, and it resolves all post-judgment proceedings you have
      filed since you were sentenced on 12/2/92.



E.    Mr. Campbell, unaware that this petition is still pending, files his
      “second” habeas petition.

      Believing that the June 12, 1995, letter from the district court was a valid

order disposing of his previously filed petition, Mr. Campbell did not seek to

amend that petition. Rather, on April 7, 1997, Mr. Campbell filed a second §

2255 petition seeking to attack his sentence on a new ground: that his counsel

had been ineffective for failing to request a downward departure based on the fact

that Mr. Campbell had voluntarily confessed to participating in six bank robberies

of which the government had previously been unaware.



F.    Our Court, unaware that the first petition was still pending, treated
      Mr. Campbell’s intervening petition as a second or successive petition.

      Because the district court believed Mr. Campbell’s petition to be a second

or successive petition, it transferred the petition to this Court for certification

pursuant to §§ 2255 and 2244(b)(3) on April 22, 1997. We denied the certificate

on June 5, 1997, because Mr. Campbell did not meet his burden of showing “that

the claims [presented] rely on either newly discovered evidence or a new rule of

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constitutional law made retroactive by the Supreme Court. . . . [He] was aware of

the . . . [issue raised in this petition] when he filed his first motion.” Order filed

June 5, 1997, in No. 97-625 (emphasis added).



G.    Mr. Campbell’s first habeas petition reappears when the magistrate
      judge issues a report and recommendation denying it in part and
      granting it in part.

      On July 28, 1997, more than three-and-a-half years after the petition had

been referred to him, the magistrate judge reported that Mr. Campbell’s claim of

ineffective assistance of counsel was not procedurally barred and that the

government conceded that Mr. Campbell’s counsel was in error in failing to

object to the PSR. The magistrate judge recommended that the district court grant

Mr. Campbell’s petition in part and order a re-sentencing hearing, that Mr.

Campbell be allowed to attend the hearing pursuant to the dictates of Fed. R.

Crim. P. 43(a), and that the probation office prepare a corrected PSR for use at

the hearing. The magistrate judge recommended denial of Mr. Campbell’s other

asserted grounds for relief.



H.    The government objects, and the magistrate agrees.

      The government objected to the magistrate judge’s recommendation,

pointing to the sentencing court’s June 1993 letter and its amended judgment.


                                          -5-
The government claimed the letter and the corrected judgment mooted the

magistrate judge’s only ground for recommending that the district court grant Mr.

Campbell’s petition. After reviewing the government’s objection and the district

court’s letter and amended judgment, the magistrate judge changed his

recommendation to advise that Mr. Campbell’s § 2255 petition be denied in its

entirety.



J.    Mr. Campbell objects (in part), and the district court disagrees.

      Mr. Campbell objected, arguing that the sentencing court’s letter did not

state the reason it reduced his sentence, that the amendment to his sentence was

tardy under Fed. R. Crim. P. 35(c), and that Fed. R. Crim. P. 43(a) required his

presence at the imposition of sentence, making the district court’s sua sponte

reduction of his sentence procedurally defective. Mr. Campbell did not object to

the rest of the magistrate judge’s report.

      The district court rejected Mr. Campbell’s arguments and denied his

petition pursuant to the magistrate judge’s recommendation. The district court

stated that

      [the sentencing judge’s] correction remedied the oversight in the
      presentence report. Rule 36 of the Rules of Criminal Procedure
      allows the court to correct, at any time, errors in the record arising
      from oversight or omission. [The sentencing judge] made such a
      correction, which reduced [Mr. Campbell’s] sentence and effectively


                                         -6-
      awarded [him] the relief he is seeking. This oversight correction
      does not require the presence of [Mr. Campbell] under Rule 43.



K.    Mr. Campbell appeals; the government concedes error; and we agree.

      Mr. Campbell appeals the district court’s denial of his “first” § 2255

petition and also seeks to amend the petition in order to include his “second”

petition’s ineffective assistance claim based upon his counsel’s failure to request

a downward departure.

      The government now concedes that according to the dictates of United

States v. Blackwell, 81 F.3d 945 (10th Cir. 1996), we must reverse the district

court. See Aple’s Br. at 8-9. We agree. See Blackwell, 81 F.3d at 948-49

(holding that a district court does not have jurisdiction to correct substantively a

sentence under Fed. R. Crim. P. 36). The government also concedes that

“[a]lthough the district court did not claim to rely on Fed. R. Crim. P. 35[,] . . .

the Amended Judgment was issued at a time when Rule 35 jurisdiction did not

apply.” See Aple’s Br. at 9 n.2. Again, we agree. See Blackwell, 81 F.3d at 948

(holding that a district court does not have jurisdiction to correct substantively a

sentence sua sponte under Fed. R. Crim. P. 35 if seven days have passed since

imposition of sentence). Thus, because the sentencing court did not have

jurisdiction, under either Rule 35 or 36, to amend Mr. Campbell’s sentence in

June of 1993, its amended sentence is void. See id. Having discovered everyone

                                         -7-
in agreement that Mr. Campbell’s amended 110-month sentence is not valid, we

must now decide what to do about his improper 120-month sentence.



L.    We grant Mr. Campbell’s petition, in part, and remand for
      consideration of amending the petition with his second.

      First, we clear away some procedural issues by (1) noting that the AEDPA

and PLRA do not apply to this § 2255 petition, which was filed in 1994, see

United States v. Kunzman, 125 F.3d 1363, 1364-65 n.2 (10th Cir. 1997), cert.

denied, 1998 WL 86544 (Mar. 30, 1998), (2) granting Mr. Campbell’s motion to

proceed in forma pauperis because he has demonstrated “‘a financial inability to

pay the required filing fees and the existence of a reasoned, non-frivolous

argument on the law and facts in support of’” his appeal, White v. Gregory, 87

F.3d 429, 430 (10th Cir.), cert. denied, 117 S. Ct. 528 (1996) (quoting

DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991)), and (3) awarding

Mr. Campbell a certificate of probable cause because he has made a substantial

showing of the denial of his federal right to effective assistance of counsel, see

Strickland v. Washington, 466 U.S. 668, 687 (1984); Barefoot v. Estelle, 463 U.S.

880, 893 (1983). However, we limit the scope of the certificate of probable

cause. The magistrate judge warned the parties that failure to object to his

recommendations could result in waiver of objections on subsequent review. Mr.

Campbell, though, only objected to the magistrate’s conclusion regarding his

                                        -8-
sentencing under the 1991 Guidelines. Thus, he preserved for review only the

issue of ineffective assistance of counsel for failure to object to the PSR’s use of

the wrong year’s Guidelines, see Talley v. Hesse, 91 F.3d 1411, 1412 (10th Cir.

1996), and that is the only issue upon which we grant the certificate.

      Second, we remand to the district court for consideration of whether Mr.

Campbell should be allowed to amend this petition with the claim presented in his

second petition. We do this out of fairness. The sentencing court specifically

informed Mr. Campbell that its letter disposed of this petition, and Mr. Campbell

relied on that letter when filing his later petition rather than attempting to amend

this one. Additionally, our Order that denied his petition as successive

specifically noted that he knew of the issues raised in his second petition when he

filed his first; of course, unbeknownst to everyone involved with his second

petition, his first petition was still pending.

      Third, we stress that we are saying nothing about the merits of the issue

presented in Mr. Campbell’s second petition; nor are we suggesting that the

district court grant Mr. Campbell leave to amend. However, we think it unfair to

subject Mr. Campbell’s claim to the much more rigorous successive petition

standards, see Stafford v. Saffle, 34 F.3d 1557 (10th Cir. 1994) (“A district court

should apply Fed. R. Civ. P. 15(a) to decide whether to allow an amendment [to a

habeas petition].”); Fed. R. Civ. P. 15(a) (“leave [to amend a pleading] shall be


                                           -9-
freely given when justice so requires”), when the reason he did not move to

amend may be because he was misinformed by the court.

      Thus, we reverse and remand for the district court to consider Mr.

Campbell’s request to amend this habeas petition with the claim raised in his later

habeas petition. After the district court has passed on Mr. Campbell’s motion to

amend, it should rule on his petition in the first instance and, in so doing, correct

the sentence with respect to the erroneously applied 1991 acceptance of

responsibility guideline.

      In concluding, we would like to thank the parties for their efforts to clarify

the difficult procedural issues raised in this appeal. We commend the

government’s attorney, Mark K. Vincent, for acting as a forthright officer of this

Court by recognizing and conceding errors made throughout the process of

sentencing Mr. Campbell. And we thank Mr. Campbell for presenting us with

clear, concise, and well-written pro se briefs. We compliment the parties in the

hopes of encouraging others to follow their good example. The mandate shall

issue forthwith.

                                        Entered for the Court,



                                        Robert H. Henry
                                        Circuit Judge



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