                              UNITED STATES COURT OF APPEALS
                                          Tenth Circuit
                               Byron White United States Courthouse
                                        1823 Stout Street
                                     Denver, Colorado 80294
                                         (303) 844-3157
Patrick J. Fisher, Jr.                                                                 Elisabeth A. Shumaker
Clerk                                                                                  Chief Deputy Clerk

                                             September 15, 1997


        TO:      All recipients of the captioned order

        RE:      97-740, USA v. Scott
                 August 26, 1997


                 Please be advised of the following correction to the captioned decision:

                On the top of page five, “his direct criminal was pending . . .” should read “his
        direct criminal case was pending . . .” Please make the correction.

                                                           Very truly yours,

                                                           Patrick Fisher, Clerk



                                                           Susie Tidwell
                                                           Deputy Clerk
                                      PUBLISH

                    UNITED STATES COURT OF APPEALS

                           FOR THE TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

       v.                                         No. 97-740
                                                  CIV-97-717-T
 WALLIE A. SCOTT,

             Defendant - Appellant.




                                      ORDER
                                Filed August 26, 1997


Before PORFILIO, ANDERSON and BRORBY, Circuit Judges.



PER CURIAM.

      This matter is before the court on Wallie A. Scott’s motion for authorization

to file a second 28 U.S.C. § 2255 motion in the district court pursuant to the

Antiterrorism and Effective Death Penalty Act (AEDPA).

      Mr. Scott originally filed his § 2255 motion in the district court. The district

court, after concluding that the motion was a second or successive motion,

transferred the matter to this court pursuant to Coleman v. United States, 106 F.3d
339, 341 (10th Cir. 1997). Mr. Scott was then given 30 days to file a proper motion

seeking authorization to file the petition. Id. Mr. Scott subsequently filed a motion

for permission in this court.

        The grounds which Mr. Scott wishes to present in this § 2255 include

ineffective assistance of both trial and appellate counsel.

        Mr. Scott was convicted in 1989, following a jury trial, of conspiracy to

possess with intent to distribute cocaine base and possession with intent to distribute

cocaine base. He was sentenced in December 1989 to 240 months incarceration. Mr.

Scott’s retained counsel did not file a notice of appeal.

        In November 1991 Mr. Scott filed a § 2255 motion. Proceeding pro se, he

alleged that his counsel failed to file an appeal. The district court judge entered an

order granting the § 2255 motion, scheduling a resentencing hearing, and appointing

counsel. At resentencing, the court imposed the same sentence originally imposed.

Mr. Scott, represented by appointed counsel, appealed the conviction and sentence.

This court affirmed.

        The “gatekeeping” function of the courts of appeals set forth in AEDPA was

upheld in Felker v. Turpin, 116 S.Ct. 2333 (1996). The Court concluded that this

function is within the mainstream of the evolving jurisprudence to curb abuse of the

writ.

              The new restrictions on successive petitions constitute a
              modified res judicata rule, a restraint on what is called in

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             habeas corpus practice “abuse of the writ.” In McCleskey
             v. Zant [499 U.S. 467, 491-92 (1991)], we said that “the
             doctrine of abuse of the writ refers to a complex and
             evolving body of equitable principles informed and
             controlled by historical usage, statutory developments, and
             judicial decisions.” The added restrictions which the
             [AEDPA] places on second habeas petitions are well
             within the compass of this evolutionary process, and we
             hold that they do not amount to a ‘suspension’ of the writ
             contrary to Article I, § 9 [of the Constitution].

Id. at 2340 (citations omitted).

      While AEDPA instituted this gatekeeping procedure for second or successive

habeas petitions, it does not define what is meant by “second or successive.” In

Reeves v. Little, ___ F.3d ___, No. 97-741 (10th Cir. Aug. 13, 1997), 1997 WL

459783, this court determined that, where the petitioner’s first § 2254 petition was

filed as part of the Harris v. Champion litigation 1, a subsequent petition was not

successive under AEDPA. Reeves used the abuse of the writ standard in effect

before AEDPA was enacted to determine whether the subsequent § 2254 petition

should be considered successive under AEDPA.




      1
        In this series of cases, including Harris v. Champion, 15 F.3d 1538 (10th Cir.
1994), Harris v. Champion, 938 F.2d 1062 (10th Cir. 1991) and Hill v. Reynolds, 942
F.2d 1494 (10th Cir. 1991), this court examined the Oklahoma criminal appellate process
insofar as it contributed to delay in deciding direct criminal appeals of indigent
defendants.

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                    The unique situation presented in the Harris cases
             prevented Mr. Reeves from presenting claims other than
             the issue of whether the delay in his appellate review
             violated his due process rights. . . .

             . . .[I]f the instant petition is considered a second or
             successive one under AEDPA any other claims which
             existed at the time the first petition was filed would be
             foreclosed from federal review. This “would conflict with
             the doctrine of writ abuse as understood both before and
             after Felker.” To construe these subsequent petitions as
             second or successive, “far from falling ‘well within the
             compass’ of the evolving doctrine of abuse of the writ, as
             stated in Felker, would unjustifiably deviate from that
             evolution.”

Reeves v. Little, id. at *3 (quoting Camarano v. Irvin, 98 F.3d 44, 46 (2d Cir. 1996)).

See also McWilliams v. State of Colorado, ___ F.3d ___, No. 96-1328 (10th Cir.

Aug. 11, 1997), 1997 WL 452575, * 2-3 (holding that “a [§ 2254] petition filed after

a prior petition is dismissed without prejudice for failure to exhaust state remedies

does not qualify as a ‘second or successive’ application” within the meaning of

AEDPA.).

      Here, when the district court resentenced Mr. Scott following the filing of his

first § 2255 motion, the resentencing enabled Mr. Scott to perfect his direct appeal.

See United States v. Davis, 929 F.2d 554, 557 (10th Cir. 1991). The purpose of the

resentencing was to place the defendant “back into the position he would have been

had counsel perfected a timely notice of appeal.” United States v. Saucedo, 950 F.2d

1508, 1511 (10th Cir. 1991). In fact, on appeal from the resentencing, this court


                                          4
treated the matter as a direct criminal appeal. See United States v. Scott, No. 92-

6272 (10th Cir. 1993), 1993 WL 411596.

      In addition, a § 2255 motion should not be considered before the disposition

of the direct criminal appeal. In United States v. Cook, 997 F.2d 1312 (10th Cir.

1993), the defendant filed a motion in the district court styled “writ of habeas corpus

and/or motion for new trial and/or motion to dismiss” while his direct criminal was

pending in the court of appeals. The district court construed this motion as the

defendant’s first § 2255 motion and concluded that a claim for ineffective assistance

of counsel raised in a subsequent § 2255 motion constituted abuse of the writ. This

court held that the district court erred in characterizing the subsequently filed motion

as a second § 2255 motion.

             Although Defendant filed a motion styled “writ of habeas
             corpus and/or motion for new trial and/or motion to
             dismiss,” which apparently was construed by the district
             court to be his first § 2255 motion, he filed the motion on
             April 3, 1990, approximately a year and a half before we
             decided Defendant’s direct appeal. Absent extraordinary
             circumstances, the orderly administration of criminal
             justice precludes a district court from considering a § 2255
             motion while review of the direct appeal is still pending.
               We therefore conclude that when the district court
             considered Defendant’s [first] motion, it did so only as a
             motion for a new trial and motion to dismiss, and not as a
             habeas petition or § 2255 motion.

Id. at 1318-19 (citations omitted).




                                           5
      Furthermore, Mr. Scott’s ineffective assistance of appellate counsel claim did

not even exist until the direct appeal process concluded. See Martinez-Villareal v.

Stewart, 118 F.3d 628 (9th Cir. 1997)(competency-to-be-executed claim may be

raised in a subsequent habeas petition because such claim is not ripe until the first

petition has been denied). It is also questionable whether Mr. Scott could have

raised his ineffective assistance of trial counsel claim in the prior proceeding. See

United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995)(en banc)

(“Ineffective assistance of counsel claims should be brought in collateral

proceedings, not on direct appeal.      Such claims brought on direct appeal are

presumptively dismissable, and virtually all will be dismissed.”). Thus these issues

would be precluded from review if the instant motion is construed as a second

motion under AEDPA.

      Thus, as in Reeves, because of the unique situation presented when the

granting of the prior motion merely reinstated the right to a direct appeal, the first

subsequent motion is not a second or successive motion under AEDPA.

      Accordingly, the district court order is VACATED and the matter is

REMANDED to the district court for such other and further proceedings as may be

just and proper.




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