                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-10-2003

In Re: Olabode
Precedential or Non-Precedential: Precedential

Docket 02-2226




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Recommended Citation
"In Re: Olabode " (2003). 2003 Decisions. Paper 594.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/594


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                                   PRECEDENTIAL

                                               Filed April 10, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                            No. 02-2226


             IN RE: ILORI BABAJIDE OLABODE,
                                       Petitioner

      On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                  (D.C. No. 98-cr-00297-3)
              District Judge: Hon. Marvin Katz

                   Argued: January 28, 2003
        Before: SLOVITER, RENDELL, Circuit Judges,
              and DEBEVOISE, District Judge*

                       (Filed April 10, 2003)

                          Peter A. Levin (Argued)
                          1927 Hamilton Street
                          Philadelphia, PA 19130
                            Attorney for Petitioner




* Honorable Dickinson R. Debevoise, Senior Judge, United States District
Court for the District of New Jersey, sitting by designation.
                           2


                    Patrick L. Meehan
                     United States Attorney
                    Laurie Magid
                     Deputy United States Attorney
                    Robert A. Zauzmer
                     Assistant United States Attorney
                    Christopher R. Hall (Argued)
                     Assistant United States Attorney
                    Office of United States Attorney
                    Philadelphia, PA 19106
                      Attorneys for Respondent
                    Maureen Kearney Rowley
                     Chief Federal Defender
                    David L. McColgin (Argued)
                     Assistant Federal Defender
                     Supervising Appellate Attorney
                    Defender Association of Philadelphia
                    Federal Court Division
                    Philadelphia, PA 19106
                      Attorneys for Amici Curiae,
                      Community Defender Organization
                      for the Eastern District of
                      Pennsylvania; Federal Court
                      Division of the Defender
                      Association of Philadelphia;
                      Federal Defender Offices of the
                      Middle District of Pennsylvania,
                      Western District of Pennsylvania,
                      New Jersey, Delaware, and the
                      Virgin Islands; and National
                      Association of Federal Defenders


               OPINION OF THE COURT

SLOVITER, Circuit Judge:
  The issue before us is whether Petitioner’s motion to
vacate his sentence pursuant to 28 U.S.C. § 2255 is
“second or successive” under the Antiterrorism and
                                3


Effective Death Penalty Act of 1996 (“AEDPA”) where the
District Court had previously granted Petitioner’s § 2255
motion restoring his right to file a direct appeal. After
Petitioner was unsuccessful on his direct appeal, he filed
the § 2255 motion which is the subject of the appeal before
us. This court has not previously addressed this issue. Six
other courts of appeals have considered the issue and are
divided, with the majority concluding that such a motion is
not second or successive for purposes of AEDPA. We turn
to the facts of the case before considering the legal issue.

                                I.

                        BACKGROUND
  In 1998, a federal grand jury charged Ilori Olabode with
one count of conspiracy in violation of 18 U.S.C. § 371, one
count of bank fraud in violation of 18 U.S.C. § 1344,
forfeiture pursuant to 18 U.S.C. § 982(a)(2)(A) and aiding
and abetting in violation of 18 U.S.C. § 2. Using false
names, Olabode and his co-conspirators obtained licenses
to operate fictitious businesses, opened commercial
accounts at various banks, deposited counterfeit checks
and made cash withdrawals. Olabode made deposits
totaling $166,662.58 and withdrew $36,000 in cash before
the banks discovered the scheme.
  Olabode pled guilty to the conspiracy charge on
November 30, 1998 pursuant to a written plea agreement.
The District Court dismissed the remaining counts of the
indictment and granted the Government’s motion for a
downward departure based upon Olabode’s substantial
assistance in the investigation of another person. On June
25, 1999, the District Court sentenced Olabode to six
months imprisonment and three years supervised release,
and ordered him to pay restitution in the amount of
$36,000 and a $100 special assessment. Olabode’s prison
term expired on December 22, 1999 and he is being
detained at an INS detention facility.1

1. This case is not moot, because Olabode may suffer the collateral
consequence of deportation as a result of his conviction.
                               4


   On May 9, 2000, Olabode, proceeding pro se, filed a
motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255, alleging that his counsel failed to file a direct appeal
as he requested. Pursuant to this court’s decision in United
States v. Miller, 197 F.3d 644 (3d Cir. 1999), the District
Court notified Olabode that under AEDPA, he must include
all of his potential claims in his § 2255 motion, and gave
him 30 days to inform the court whether he wished to
supplement his motion. Olabode did not respond. However,
the Government conceded that there was merit to his claim
that counsel failed to file a direct appeal.
   On July 26, 2000, the District Court granted Olabode’s
§ 2255 motion and stated that it would resentence him to
allow the filing of a notice of appeal. It appointed the
Defender Association of Philadelphia, Federal Court
Division   to   represent   Olabode.     Defense   counsel
subsequently informed the District Court by letter that he
had reviewed the record, that he found “no additional
grounds for habeas relief ” and that he was ready to
proceed with the resentencing. Supp. App. at 13. On
January 11, 2001, the District Court reimposed the original
sentence. Olabode filed a notice of appeal on January 12,
2001.
  On direct appeal, Olabode claimed that the District Court
had improperly delegated the setting of the restitution
schedule to the probation office. The Government agreed
that a remand was warranted. This court remanded the
case to the District Court to impose a restitution schedule.
On February 15, 2002, the District Court ordered a
schedule of payments fixed at $1.00 per year while Olabode
was confined at the INS detention center.
   On March 15, 2002, Olabode filed another pro se motion
to vacate his sentence pursuant to § 2255, alleging that
trial counsel misrepresented the terms of the plea
agreement and that the evidence was insufficient to support
his guilty plea. The District Court transferred the motion to
this court as an application for authorization to file a
second or successive § 2255 motion to the extent Olabode
claimed counsel was ineffective during the guilty plea
colloquy and sentencing, and denied the motion on the
merits to the extent Olabode claimed counsel rendered
                             5


ineffective assistance on appeal. Olabode has not appealed
the latter ruling. This court appointed counsel to represent
Olabode and directed the parties to address whether a
subsequent § 2255 motion is second or successive when a
prior § 2255 motion was limited to an effort to reinstate the
right to file a direct appeal. An amicus brief was filed on
behalf of the Community Defender Organization for the
Eastern District of Pennsylvania, the Federal Court Division
of the Defender Association of Philadelphia, the Federal
Defender Office for the Middle District of Pennsylvania, the
Federal Defender Office for the Western District of
Pennsylvania, the Federal Defender Office of New Jersey,
the Federal Defender Office of Delaware, the Federal
Defender Office for the Virgin Islands, and the National
Association of Federal Defenders. Amici argue that
Olabode’s § 2255 motion is not second or successive.

                             II.

      JURISDICTION AND STANDARD OF REVIEW
   This court has jurisdiction over a motion for
authorization to file a second or successive motion to vacate
sentence pursuant to 28 U.S.C. §§ 2244, 2255. We review
issues of statutory interpretation de novo. Kapral v. United
States, 166 F.3d 565, 567 (3d Cir. 1999).

                            III.

                       DISCUSSION
   The passage of AEDPA effected many changes in the law
regarding applications for collateral relief in the federal
courts. Significant among those changes was the new
limitation of a prisoner’s ability to file more than one
collateral challenge. Previously, the courts could dismiss a
second or subsequent collateral attack on a conviction if
the court believed it constituted an “abuse of the writ.”
McCleskey v. Zant, 499 U.S. 467, 494 (1991). AEDPA,
however, has imposed a much more stringent rule. Once
the defendant has completed a direct appeal, the prisoner
                               6


may file one collateral challenge as a matter of course
provided it is timely. See 28 U.S.C. § 2255.
   Thereafter, a prisoner’s ability to file a second or
successive application for collateral relief is limited. Before
a second or successive § 2255 motion may be filed in the
district court, the applicant must move in the appropriate
court of appeals for an order authorizing the district court
to consider the motion. 28 U.S.C. §§ 2244(b)(3)(A), 2255.
Authorization may be granted only if the motion contains
“(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of
the offense; or (2) a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” Id. § 2255.
Notwithstanding the specificity of many of the provisions of
AEDPA, it does not define what constitutes a “second or
successive” motion, the necessary predicate for application
of these provisions.
   Olabode argues that the § 2255 motion that he filed after
his resentencing is not second or successive because he
filed his first § 2255 motion to reinstate his right to a direct
appeal after his counsel failed to file a notice of appeal. He
notes that a defendant whose counsel filed a timely direct
appeal would be able to file a § 2255 motion thereafter. He
maintains that it would be unjust to require him to use his
one § 2255 motion to reinstate a right that he would have
had if counsel filed an appeal as he requested.
   Olabode’s argument is supported by the amici curiae who
contend that, as a matter of statutory construction,
because a § 2255 motion seeks “to vacate, set aside or
correct the sentence,” 28 U.S.C. § 2255 (emphasis added),
a second or successive motion would have to be second or
successive to another § 2255 motion challenging the same
order imposing sentence. Olabode’s § 2255 motion at issue
challenges a different order than did the first motion;
correspondingly, the notice of appeal was taken from the
latter sentencing order dated January 11, 2001, and not
the first sentencing order dated June 25, 1999.
                              7


   The amici curiae also argue that as a matter of policy the
direct appeal should occur before a collateral attack is
made because only issues not raised or raisable on direct
appeal can be addressed in a § 2255 motion. They state
that a direct appeal gives the defendant an opportunity to
evaluate with counsel the claims that may be raised in a
§ 2255 motion. Like Olabode, amici curiae argue that this
approach places the defendant in the position he would
have been in had the notice of appeal been timely filed.
  The Government argues that the better view is that such
a motion is second or successive except with respect to
claims which relate to the direct appeal. It contends that
the statute does not provide for the exception that Olabode
seeks, and emphasizes that the District Court in this case
notified Olabode that he was required to present all of his
claims in his first motion. See Miller, 197 F.3d 644. In
response to the argument that the § 2255 motion at issue
corresponds to the new sentencing order, the Government
contends that the entry of the new sentence was a
ministerial act, that the original sentence was not changed
in any way and that Olabode’s claims relate to events
predating that sentence.
  The Government argues in response to the amici curiae’s
policy arguments that requiring a defendant to present all
of his claims in his § 2255 motion seeking to reinstate his
appeal is not unfair because he has no right to collateral
review and the grounds for collateral relief are limited. It
contends that the rule urged by Olabode and the amici
curiae will treat some petitioners differently because those
petitioners whose motions to reinstate their appeals are
denied will not be able to file a second § 2255 motion
without seeking authorization from the court of appeals.
  This issue was most recently considered by the Court of
Appeals for the Eleventh Circuit in McIver v. United States,
307 F.3d 1327 (11th Cir. 2002). McIver filed a motion
pursuant to § 2255 alleging that trial counsel was
ineffective for failing to file a notice of appeal and seeking
the right to file a direct appeal. The district court granted
the motion and entered a new judgment of sentence,
thereby allowing the defendant to file a timely notice of
appeal. McIver’s conviction and sentence were affirmed on
                              8


direct appeal and he then filed a § 2255 motion challenging
his conviction and sentence. The district court dismissed
the motion as a second or successive application for post-
conviction relief that could not be filed without the
permission of the court of appeals.
  The court of appeals reversed. It ruled that the motion
was not second or successive, explaining that the
defendant’s motion does not attack the judgment at issue
in his earlier § 2255 motion but attacks the new judgment
that was entered to permit his direct appeal. Id. at 1330. It
stated that the first motion sought only the opportunity to
prosecute a direct appeal and did not seek to have the
conviction overturned or sentence vacated. Id. The court
noted that some collateral challenges do not render
subsequent motions second or successive, such as those
that follow dismissal of a first motion for failure to exhaust
state remedies, those that are unripe or those dismissed
because the defendant failed to pay the required filing fee.
Id. at 1330-31. Finally, the court explained that this
approach restores the defendant to the position he would
be in had his lawyer filed a timely notice of appeal. Id. at
1331.
  The same approach was taken by the court of appeals in
In re Goddard, 170 F.3d 435 (4th Cir. 1999). There, the
district court had granted the defendant’s § 2255 motion
based on the defendant’s claim that counsel failed to file a
direct appeal despite his request to do so. After the
defendant’s subsequent direct appeal was denied, the
defendant filed another § 2255 motion alleging ineffective
assistance of counsel at sentencing. The district court
dismissed the motion, concluding this § 2255 motion was
“second or successive” and that the defendant needed the
prior authorization of the court of appeals.
   In deciding that the defendant did not need its
authorization to file the § 2255 motion in the district court,
the majority opinion of the Court of Appeals for the Fourth
Circuit reasoned that the defendant would not be fully
restored to the position that he would have been in had his
lawyer filed a timely appeal if his subsequent § 2255 motion
is considered to be second or successive. Id. at 437. The
court stated that a prisoner who uses his one § 2255
                                     9


motion to regain his constitutional right to a direct appeal
will not have a full and fair opportunity to wage a collateral
attack, and that requiring the defendant to raise all of his
claims in his first § 2255 motion forces him, without
counsel, to make the objections to his conviction that his
lawyer would have made for him on direct appeal and
subjects these claims to a more stringent standard of
review. Id.2
   The Courts of Appeals for the Seventh and Tenth Circuits
also have concluded that a § 2255 motion filed after the
reinstatement of the right to a direct appeal is not second
or successive. See Shepeck v. United States, 150 F.3d 800,
801 (7th Cir. 1998) (per curiam) (concluding that an order
granting a § 2255 motion and reimposing sentence because
counsel failed to file a direct appeal “resets to zero the
counter of collateral attacks pursued”); United States v.
Scott, 124 F.3d 1328, 1330 (10th Cir. 1997) (per curiam)
(“[B]ecause of the unique situation presented when the
granting of the prior [§ 2255] motion merely reinstated the
right to a direct appeal, the first subsequent motion is not
a second or successive motion under AEDPA.”); see also
Vasquez v. Parrott, 318 F.3d 387 (2d Cir. 2003) (holding
habeas petition was not second or successive where first
petition did not attack conviction but alleged due process
violation due to delay in adjudication of direct appeal in
state court).
  The opposite conclusion has been reached by two courts
of appeals. In United States v. Orozco-Ramirez, 211 F.3d
862 (5th Cir. 2000), the court agreed with the district court
that its grant of the defendant’s § 2255 motion enabling
him to file a direct appeal which his attorney had failed to
protect should be counted as a first § 2255 motion.
Therefore, the defendant who filed another § 2255 motion
seeking to vacate his conviction and sentence after his
sentence was affirmed on direct appeal sought a second or

2. The dissenting judge was of the position that requiring a defendant to
raise all collateral claims in the first motion is not unfair because he has
no right to counsel or a more favorable standard of review in a § 2255
proceeding. Id. at 441. This is essentially the position of the Government
in this appeal.
                             10


successive § 2255 motion which required court of appeals
authorization. In affirming, the court of appeals
distinguished the decision in Stewart v. Martinez-Villareal,
523 U.S. 637 (1998), where the Supreme Court held that a
§ 2255 motion was not second or successive where it
presented a claim that had been dismissed as premature
when it was raised in a prior § 2255 motion. The Orozco-
Ramirez court noted that in Stewart the defendant could
not have raised the claim in his first motion but Orozco-
Ramirez could have included his claims when he filed his
initial § 2255 motion seeking reinstatement of his right to
appeal. 211 F.3d at 869. The court applied principles of res
judicata to conclude that the second motion was second or
successive under AEDPA. Id. at 871. The court did allow
the defendant to pursue claims arising out of the direct
appeal, id., as did the District Court in this case.
   A similar approach was taken by the Court of Appeals for
the First Circuit in Pratt v. United States, 129 F.3d 54 (1st
Cir. 1997). It concluded that the defendant was required to
present all of his available claims in his initial § 2255
motion seeking reinstatement of his right to a direct appeal.
Id. at 61. The court rejected the defendant’s arguments that
presenting all of his claims would have been premature
because he had yet to pursue a direct appeal and that the
second motion attacked a different judgment than his
initial motion. Id. at 61-62. It explained that the defendant
had an incentive to include all of his claims in his initial
motion because he could not predict whether the district
court would grant it based upon the claim that counsel
failed to file a timely appeal. Id. at 61. Because the
defendant had the incentive and ability to raise his other
claims in his first motion, the court held that the standard
practice of entering a new judgment when an appeal is
reinstated did not support that the second motion was not
“second or successive.” Id. at 62.
  The position taken by the minority of the courts of
appeals to have considered the issue is not unreasonable
but ultimately unpersuasive. The purpose of Olabode’s
resentencing was to put him back into the position that he
would have been in had his attorney filed a notice of
appeal. It was not until Olabode filed his subsequent
                                   11


§ 2255 motion that he sought to vacate, set aside or correct
his sentence. Allowing Olabode to pursue his direct appeal
and then raise any remaining collateral claims in a § 2255
motion ensures the orderly administration of direct and
collateral proceedings. See Kapral, 166 F.3d at 572 (noting
defendants     should    conclude   direct  review    before
commencing § 2255 proceedings).
   This result is consistent with the Supreme Court’s
decision in Stewart, 523 U.S. 637. The defendant in that
case filed several habeas petitions that were dismissed for
failure to exhaust state remedies. After exhausting state
remedies, he filed a habeas petition raising various claims,
including a claim that he was incompetent to be executed.
The district court addressed the claims on the merits with
the exception of the incompetency claim which it dismissed
as premature. After the state obtained a warrant for the
defendant’s execution, the defendant moved to reopen his
incompetency claim. The district court ruled that it lacked
jurisdiction over the motion and the defendant moved in
the court of appeals for permission to file a successive
habeas petition. The court of appeals held that
authorization was not required. Id. at 641.
  The Supreme Court agreed, holding that the petition was
not second or successive because the claim was not ripe at
the time of the first petition. Id. at 643. It compared the
claim to one that has been dismissed for failure to exhaust
state remedies and explained that a dismissal for technical
procedural reasons does not bar the defendant from
obtaining habeas review. Id. at 645. Although Olabode’s
initial motion was not dismissed on technical procedural
grounds, it was granted so that he could pursue a direct
appeal, a step that should be taken prior to collaterally
attacking a sentence. Like the situation where a habeas
petition has been dismissed for failure to exhaust state
remedies, when Olabode filed his subsequent motion the
District Court had yet to adjudicate any claims challenging
his conviction or sentence.3 Accordingly, we agree with the

3. Our conclusion also comports with Solis v. United States, 252 F.3d
289 (3d Cir. 2001), holding that where a defendant claims in a § 2255
motion that his attorney failed to file a direct appeal, the defendant is
                                     12


majority of the other courts of appeals that have addressed
this issue and hold that Olabode’s § 2255 motion is not
second or successive under AEDPA as Olabode’s first
§ 2255 motion merely sought reinstatement of his right to
a direct appeal.
   In Christy v. Horn, 115 F.3d 201, 208 (3d Cir. 1997), we
held that when the prisoner’s prior petition was dismissed
for failure to exhaust state remedies, it did not count as a
first petition. We reasoned that “[t]he problems that the
abuse of the writ doctrine seeks to avoid are not implicated
when a petition is filed after a prior petition is dismissed for
lack of exhaustion.” Id. at 208. Similarly here, when the
first petition merely sought the right to file a direct appeal,
there was no abuse of the writ.4

entitled to an evidentiary hearing on the matter unless the claim is
conclusively contradicted by the record or patently frivolous. The court
remanded the case for a hearing and denied without prejudice the other
claims raised in the § 2255 motion. The court further stated that “[i]n the
event the Petitioner presents another § 2255 petition, it shall be deemed
his first filed petition.” Id. at 295.
4. The Government has submitted a letter pursuant to Federal Rule of
Appellate Procedure 28(j) calling to our attention this court’s recent
decision in United States v. Barnes, 2003 WL 1467580 (3d Cir. March
24, 2003). It states that this decision is consistent with its view that a
§ 2255 petitioner must raise all claims in an initial petition. A review of
the procedural posture of Barnes shows that it is not precedential
authority for the Government’s position here.
   Barnes, who filed a § 2255 claiming trial counsel was ineffective in
failing to file a timely appeal, was advised by the district court to raise
all his claims for relief in one § 2255. Barnes withdrew his earlier § 2255
and refiled it raising other claims in his § 2255 motion in addition to the
claim that counsel failed to file a direct appeal. The district court in
Barnes granted the § 2255 motion on the claim that counsel failed to file
an appeal and took Barnes’ other claims under advisement. It entered a
new judgment of conviction and sentence. When Barnes then filed his
direct appeal and an appeal from an order denying bail, we sua sponte
questioned whether the district court’s order was final because it had
reserved the § 2255 claims. In holding that we had jurisdiction over the
direct appeal, we commented that although ordinarily a § 2255 motion is
filed after the completion of a direct appeal, the district court, by holding
Barnes’ § 2255 claims under advisement and allowing an appeal from
                                   13


                                  IV.

                           CONCLUSION
  For the reasons discussed above, we will vacate the order
of the District Court transferring Olabode’s § 2255 motion
to this court for authorization to file it pursuant to § 2244
and remand for further proceedings.

A True Copy:
        Teste:

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




the judgment of conviction, replicated that procedure as far as possible.
Although the Government correctly notes that we further stated that
Barnes “was constrained to raise all of his section § 2255 issues in his
first motion,” the issues of whether a defendant must raise all of his
claims in a § 2255 motion seeking reinstatement of the right to a direct
appeal and whether a subsequent § 2255 motion would be “second or
successive” were not squarely before the court and the court’s comment
was, at most, dictum. Barnes, 2003 WL 1467580, at *2. The issue we
raised in that case was our jurisdiction. We do not regard the court’s
passing statement as binding precedent in a case where the issue is not
squarely raised.
