United States of America v. Carlton Chew

PRECEDENTIAL
Filed March 25, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 00-2229
UNITED STATES OF AMERICA
v.
CARLTON CHEW,
Appellant.
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 92-cr-00336-01)
District Judge: Honorable Marvin Katz
Submitted Under Third Circuit LAR 34.1(a)
June 7, 2001
Before: MANSMANN, RENDELL and ALDISERT,
Circuit Judges.
(Filed: March 25, 2002)
Mr. Carlton Chew #45478-066
USP Lewisburg
P.O. Box 1000
Lewisburg, PA 17837
Pro Se Appellant
Thomas J. Eicher, Esq.
Office of United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellee
OPINION OF THE COURT
PER CURIAM.
Carlton Chew appeals from the district court’s order
denying the motion he filed nominally pursuant to Rule 17
of the Federal Rules of Criminal Procedure and which the
court construed as a motion pursuant to 28 U.S.C.S 2255.
The only significant question presented by this appeal is
whether the court erred in failing to give Chew notice that
it would so construe the motion as prescribed by United
States v. Miller, 197 F.3d 644 (3d Cir. 1999). We conclude

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that the court did not err because at the time Chew filed
his Rule 17 motion he was already barred by the statute of
limitations from filing a S 2255 motion. Accordingly, we
shall deny both his request for a certificate of appealability
and his motion for appointment of counsel.
I.
In September 1992, a jury convicted Chew of various
counts of armed bank robbery in violation of 18 U.S.C.
SS 2113(a) and (d). This Court affirmed. See United States v.
Chew, No. 93-1187 (3d Cir. October 4, 1993).
On May 30, 2000, Chew filed a document entitled"Notice
of motion for production of documents pursuant to Federal
Rules of Criminal Procedures [sic] 17(f) and petitioner [sic]
for show cause order." In it, Chew asked the district court
to order the government to comply with Rule 17(f), alleging
that the government had withheld exculpatory evidence
during his trial in violation of Brady v. Maryland, 473 U.S.
667 (1985) and that trial counsel was ineffective. Chew
appears to challenge the validity of a photo array presented
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to his teacher, Mr. Randall, and complains that Randall
"was never called by the defense or prosecution to contest
the validity of the arrest warrant." Chew argues also that
his counsel was ineffective for failing to call Mr. Randall as
a witness because Randall would have refuted exculpatory
alibi evidence which could have resulted in a verdict
favorable to Chew.
In response, the government asked the court to issue a
notice pursuant to United States v. Miller, 197 F.3d 644 (3d
Cir. 1999). The court declined to do so, finding that the
concerns raised by Miller do not apply because the statute
of limitations already bars Chew from filing a S 2255
motion. A week later the court denied Chew’s Rule 17
motion "as untimely since it is brought well past the
conclusion of trial" and because to the extent the motion
attacks Chew’s conviction, the claim is barred because
Chew raised the matter of the allegedly exculpatory witness
on direct appeal. The court declined to issue a certificate of
appealability. This appeal followed. Chew has filed a motion
for appointment of counsel and a request for a certificate of
appealability in which he addresses the merits of his claims
but not the timeliness of his motion.
II.
To the extent that Chew’s motion was pursuant to Rule
17, it was untimely because it was brought well past the
conclusion of trial. Rule 17 serves the economical purpose
of expediting trials by governing the issuance of pre-trial
subpoenas. See Bowman Dairy Co. v. United States, 341
U.S. 214, 220 (1951). However, Rule 17 has no application
in post-conviction proceedings. Rather, Chew’s claims fall
squarely within S 2255: he is "claiming the right to be

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released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States
. . . or is otherwise subject to collateral attack." 28 U.S.C.
S 2255 P 1. We recognize also that it has long been the
preference of this court that claims of ineffective assistance
of counsel be brought in S 2255 motions. United States v.
DeRewal, 10 F.3d 100, 103 (3d Cir. 1993). Accordingly, it
was not unreasonable for the district court to construe
Chew’s Rule 17 motion as a S 2255 motion. The only
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question is whether the district court erred in denying the
government’s request to provide Miller notice. We hold that
it did not because Miller notice is not required if, as here,
the motion in question was already barred by AEDPA’s
statute of limitations at the time of filing.
As we explained in Miller, the once-generous practice of
liberally construing pro se filings as S 2255 motions was
rendered potentially disadvantageous by the enactment of
AEDPA:
Had AEDPA not been enacted, the District Court’s
handling of Miller’s motions in this case would pose no
problem. AEDPA, however, dramatically altered the
form and timing of habeas petitions filed in the federal
courts.
Section 2255, as amended by AEDPA, bars second or
successive habeas petitions absent exceptional
circumstances and certification by the appropriate
court of appeals. Amended sections 2255 and
2244(d)(1), moreover, impose a one-year statute of
limitation on applications for writ of habeas corpus.
Habeas petitioners must therefore be careful to avoid
the twin procedural bars that AEDPA has created. To
avoid making successive claims, petitioners must
marshal in one S 2255 writ all the arguments they have
to collaterally attack their convictions. And in order to
avoid being time barred, they must take care to file this
one all-inclusive petition within one year of the date on
which the judgment of conviction becomes final.
With AEDPA in place, the practice of liberally
construing post-conviction motions as S 2255 petitions
can, in the absence of cautionary or educational
measures, impair the ability of inmates to challenge
their convictions on collateral review. If each pro se
post-conviction filing is treated as a S 2255 writ, as was
once the case, inept petitioners face losing potentially
valid constitutional claims at the hands of judges who
are applying a rule of liberal construction that was
created to benefit pro se claimants.
Miller, 197 F.3d at 649 (internal citations omitted).
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In an attempt to avoid these problems, we followed the
teachings of Adams v, United States, 155 F.3d 582 (2d Cir.
1998) and determined that upon receiving a pro se pleading
challenging an inmate’s conviction or incarceration,
regardless of whether it is styled as a S 2255 motion, the
court should issue a form notice regarding the effect of
such a pleading in light of AEDPA. Furthermore, the court
should allow the prisoner to choose: (1) to have his motion
ruled upon as filed; or (2) to have his motion
recharacterized as a S 2255 motion and heard as such but
lose his ability to file a second or successive petition absent
certification by the court of appeals; or (3) to withdraw his
motion and file one all-inclusive S 2255 motion within the
one-year statutory period prescribed by AEDPA inS 2255.
Miller, 197 F.3d at 646. In addition, in Miller we tolled the
statute of limitations because Miller had filed his motion
before the statute of limitations began to run. 1
These considerations do not apply in Chew’s case.
Because Chew filed his Rule 17 motion long after the time
had passed for filing a S 2255 motion,2 we cannot equitably
toll the statute of limitations as we did in Miller. Thus, not
only was Chew’s Rule 17 motion (whether or not it is
construed as such) already untimely when he filed it, but
any S 2255 motion he filed following Miller notice would be
time-barred as well. In this context, providing Miller notice
would, as the district court found, have been "an exercise
in futility."3 Accordingly, the court did not err in declining
to give Miller notice.
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1. Other courts have acted similarly. See e.g. Adams, 155 F.3d at 584
n.2 (tolling the statute of limitations because Adams still had time to file
a S 2255 motion when the district court issued its order); United States
v. Kelly, 235 F.3d 1238, 1242 (10th Cir. 2000); Mason v. Myers, 208
F.3d 414, 419 (3d Cir. 2000) ("if in the future a District Court failed to
provide the necessary warnings prescribed in Miller, the statute of
limitations should similarly be tolled to allow the petitioner an
opportunity to file all of his claims in the correct manner").
2. Chew’s conviction became final before the effective date of AEDPA,
April 24, 1996. Accordingly, he had a year from that date to file a S 2255
motion. Burns v. Morton, 134 F.3d 109 (3d Cir. 1998). Chew provided the
district court with no reasons to toll the statute of limitations, nor has
he provided any in his request for a certificate of appealability.
3. The Court of Appeals for the Eighth Circuit recently reached a similar
conclusion. In United States v. Wolff, 241 F.3d 1055 (8th Cir. 2001), the
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Finding no other error in the district court’s disposition
of Chew’s motion, we will deny his request for a certificate
of appealability and deny his motion for appointment of
counsel as moot.
A True Copy:
Teste:

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Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________
district court had construed a motion to dismiss under Fed. R. Crim. P.
12(b)(2) as a S 2255 motion. The court of appeals declined to decide
whether to follow Adams because it found that the district court had not
in fact recharacterized Wolff’s motion and because "Wolff is long past
the one-year statute of limitations for seekingS 2255 relief, so we see no
prejudice even if his petition were recharacterized." Id. at 1056.
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