United States of America v. John Fitzgerald Prescott

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-6721
JOHN FITZGERALD PRESCOTT,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-95-323-PJM, CA-98-2131-PJM)
Argued: June 7, 2000
Decided: July 31, 2000
Before MOTZ, TRAXLER, and KING, Circuit Judges.
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Affirmed by published opinion. Judge Traxler wrote the majority
opinion, in which Judge Motz joined. Judge King wrote a concurring
opinion.
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COUNSEL
ARGUED: Christopher Eric Gatewood, Third-Year Law Student,
UNIVERSITY OF VIRGINIA SCHOOL OF LAW APPELLATE
LITIGATION CLINIC, Charlottesville, Virginia, for Appellant.
Andrew Clayton White, Assistant United States Attorney, Baltimore,
Maryland, for Appellee. ON BRIEF: Neal L. Walters, Tamer Soli-
man, Third-Year Law Student, UNIVERSITY OF VIRGINIA

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SCHOOL OF LAW APPELLATE LITIGATION CLINIC, Char-
lottesville, Virginia, for Appellant. Lynne A. Battaglia, United States
Attorney, Baltimore, Maryland, for Appellee.
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OPINION
TRAXLER, Circuit Judge:
John F. Prescott ("Prescott") appeals the district court's dismissal
of his motion for collateral relief under 28 U.S.C.A. § 2255 (West
Supp. 2000). We affirm.
I.
On December 15, 1995, a jury convicted Prescott of possession of
a firearm after a felony conviction in violation of 18 U.S.C.A.
§ 922(g)(1) (West 2000). Prescott appealed his conviction on Febru-
ary 8, 1996, and on September 24, 1996, moved pursuant to Fed. R.
Crim. P. 33 for a new trial. We affirmed Prescott's conviction, see
United v. Prescott, No. 96-4147, 1996 WL 735599 (4th Cir. Dec. 26,
1996), and approximately three months later the district court on
April 1, 1997, denied his Rule 33 motion. Prescott then appealed the
denial of his Rule 33 motion, and we affirmed on February 3, 1998.
See United States v. Prescott, No. 97-6680, 1998 WL 39165 (4th Cir.
Feb. 3, 1998). On June 19, 1998, Prescott filed a motion pursuant to
28 U.S.C.A. § 2255 which the district court dismissed as untimely.
Prescott moved for reconsideration and the district court issued an
order denying the motion. Prescott appealed from the denial of his
motion for reconsideration, and we granted a certificate of appeala-
bility limited to the issue of timeliness of Prescott's § 2255 motion.
II.
Prescott argues that the pendency of a motion for a new trial under
Rule 33 tolls the one-year statute of limitations for filing a motion to
vacate, set aside, or correct sentence under 28 U.S.C.A. § 2255.
Because Prescott raises a question of law, our review is plenary. See
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United States v. United Med. & Surgical Supply Corp. , 989 F.2d
1390, 1398 (4th Cir. 1993).
Prior to the enactment of the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, 100 Stat. 1214 (AEDPA),
a federal prisoner could collaterally attack his conviction via a § 2255
motion "at any time." 28 U.S.C.A. § 2255 (West 1994). The AEDPA
amended § 2255 to read, in pertinent part:
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from .. .
(1) the date on which the judgment of conviction becomes
final. . . .
28 U.S.C.A. § 2255. The statute does not address when a judgment
of conviction becomes final, but we have held that"for purposes of
§ 2255, the conviction of a federal prisoner whose conviction is
affirmed by this Court and who does not file a petition for certiorari
becomes final on the date that this Court's mandate issues in his direct
appeal." United States v. Torres, 211 F.3d 836, 837 (4th Cir. 2000).
We affirmed Prescott's conviction on direct appeal on December 26,
1996, the mandate issued on January 17, 1997, and Prescott did not
file a petition for certiorari. Prescott petitioned for relief under § 2255
on June 19, 1998--approximately five months after expiration of the
one-year period.
As an initial matter, Prescott observes that this court has the author-
ity to toll the filing period of § 2255. Our authority to toll a time limit
depends on whether the limit is a jurisdictional bar or a statute of lim-
itations. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393
(1982); Harris v. Hutchinson, 209 F.3d 325, 328-29 (4th Cir. 2000).
In Harris, we held that "the limitations provisions [of the AEDPA] do
not speak in jurisdictional terms or refer in any way to the jurisdiction
of district courts." Id. at 329 (internal quotation marks omitted). Thus,
§ 2255's limitation period is subject to equitable modifications such
as tolling. See id.
Of course, the inquiry does not end with this court's authority to
toll the limitation period. Prescott must also adduce circumstances
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showing that he is entitled to the relief requested. Typically, these
"circumstances [are] external to the party's own conduct," thus mak-
ing it "unconscionable to enforce the limitation period against the
party." Id. at 330. Prescott candidly admits that the facts of his case
do not support equitable tolling, and instead argues that general inter-
ests of justice counsel tolling the one-year limitation period while a
Rule 33 motion is pending. Recognizing that the extraordinary rem-
edy sought is sparingly granted, cf. Irwin v. Dep't of Veterans Affairs,
498 U.S. 89, 96 (1990), we examine the proffered justifications for
tolling.
First, Prescott contends that tolling the AEDPA period is necessary
to the continued viability of Rule 33 and the efficient operation of the
district courts. Rule 33, of course, permits district courts to grant a
new trial "if the interests of justice so require." Fed. R. Crim. P. 33.
If the basis of the motion is newly discovered evidence, a defendant
has "three years after the verdict or finding of guilty" to make the
motion. Id. Otherwise, the motion "may be made only within 7 days
after the verdict or finding of guilty." Id. Absent tolling, Prescott
augurs that Rule 33 will become enervated if § 2255's one-year
period runs regardless of the pendency of other post-conviction
motions, or that litigants will clog the dockets of federal courts by fil-
ing § 2255 motions before Rule 33 motions have been resolved. Such
dire predictions are without foundation.
Though Rule 33 and § 2255 overlap to some extent, there are criti-
cal differences which make it unlikely, even with the changes
wrought by the AEDPA,1 that Rule 33 will be eviscerated. For exam-
_________________________________________________________________
1 Perhaps the greatest change affecting the context of Rule 33 is para-
graph eight, which provides in pertinent part:
A second or successive motion must be certified as provided in
section 2244 by a panel of the appropriate court of appeals to
contain--
(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. .. .
28 U.S.C.A. § 2255 (emphasis added).
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ple, upon entertaining a Rule 33 motion, the district court may grant
a new trial if the interests of justice favor the movant. By its terms,
Rule 33 confers broad discretion on a district court. To grant relief
under § 2255, on the other hand, the district court must "find[ ] that
the judgment was rendered without jurisdiction, or that the sentence
imposed was not authorized by law or otherwise open to collateral
attack, or that there has been such a denial or infringement of the con-
stitutional rights of the prisoner as to render the judgment vulnerable
to collateral attack." 28 U.S.C.A. § 2255. Rule 33's "interests of jus-
tice" standard is likely more enticing to a prisoner than the provisions
of § 2255. Moreover, Prescott himself proves that Rule 33 remains an
oft-traversed avenue of post-conviction relief. Approximately nine
months after his conviction, Prescott moved under Rule 33 for "a new
trial in the interest of justice." J.A. 21. Prescott's current predicament
originated not in his decision to request a new trial pursuant to Rule
33, but his inattention to the limitation period of§ 2255.2 As Prescott
has proven by his actions, prisoners will continue to utilize Rule 33
in seeking post-conviction relief.
As for docket congestion, we recognize that in some instances the
AEDPA's one-year limitation provision will compel a prisoner to file
a § 2255 motion before his earlier Rule 33 motion is resolved. Con-
solidation of motions under Rule 33 and § 2255 is an option, and dis-
trict courts are well equipped to resolve these motions in a timely and
expeditious manner. A problem obviously may arise if"one motion
is on appeal when the second reaches the district court." O'Connor v.
United States, 133 F.3d 548, 551 (7th Cir. 1998). However, this state
of affairs hardly impedes the administration of justice as alleged by
Prescott. A variety of post-trial motions are available to prisoners and
were available before the enactment of the AEDPA. Courts have
always given each post-trial motion due consideration and the filing
of a § 2255 motion while a Rule 33 motion is on appeal in no way
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2 Prescott describes § 2255's limitation period as a procedural trap for
the unwary. We disagree. In the typical case, a prisoner in federal cus-
tody must file his § 2255 motion within one year after his "judgment of
conviction becomes final." Our case law fully explains the determination
of the conviction's finality, see Torres, 211 F.3d at 837, and we fail to
see why § 2255 is any more of a "trap" than, for example, the time peri-
ods of Rule 33.
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jeopardizes the receipt of that process which is due or overly burdens
the operation of the district courts.
Prescott further argues that the exhaustion requirement in 28
U.S.C.A. § 2244(d)(2) (West Supp. 2000) for state post-conviction
proceedings before a § 2254 motion may be considered suggests that
tolling is appropriate for federal prisoners' § 2255 motions. Under
§ 2244(d)(2), "[t]he time during which a properly filed application for
State post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection." Id. Rather than pro-
viding support for Prescott's position, we believe that § 2244(d)(2)
counsels against tolling in the present case. Tolling with regard to
state proceedings "upholds the principle of comity that underlies the
exhaustion doctrine." Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999)
(internal quotation marks omitted), cert. denied , 120 S. Ct. 1262
(2000). The Supreme Court has described comity as a principle based
on
a proper respect for state functions, a recognition of the fact
that the entire country is made up of a Union of separate
state governments, and a continuance of the belief that the
National Government will fare best if the States and their
institutions are left free to perform their separate functions
in their separate ways.
Younger v. Harris, 401 U.S. 37, 44 (1971). Section 2255 applies only
to "prisoner[s] in custody under sentence of a court established by Act
of Congress," and therefore principles of comity underlying the
exhaustion doctrine are inapplicable. Moreover,§ 2244(d) indicates
Congress was aware of tolling issues regarding post-conviction relief
proceedings, yet chose not to add an exhaustion requirement for post-
trial motions to § 2255. In light of the unambiguous language of the
statute and Congress' knowing rejection of an exhaustion requirement
for § 2255, we would be guilty of judicial legislation were we to grant
the relief Prescott requests. See United States v. Brockamp, 519 U.S.
347, 352 (1997) (explaining that absent "counterindications," courts
should not assume that "Congress . . . intend[ed] courts to read other
unmentioned, open-ended, `equitable' exceptions into the statute that
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it wrote"). We therefore decline to toll the limitation period of § 2255
while a petitioner pursues relief under Rule 33.
III.
For the foregoing reasons, we affirm the district court's dismissal
of Prescott's § 2255 motion.
AFFIRMED
KING, Circuit Judge, concurring:
I must agree that the scheme now encompassed in section 2255
does not permit the tolling of the period of limitations during the pen-
dency of a motion for new trial, and I also agree that the facts under-
lying Prescott's appeal do not permit the equitable tolling of the
limitations period here. I write separately only to highlight a few
issues created by the statute as it now stands.
Among other things, section 2255, as amended by AEDPA,
encourages the filing of parallel petitions for collateral relief in certain
circumstances. That is, a prisoner in Prescott's position must file a
section 2255 motion even when another collateral challenge --
including a motion for new trial -- is already pending. If a prisoner
waits until all pending motions have been resolved before filing for
relief under section 2255, he risks a statute of limitations bar; such a
scheme is plainly antithetical to the interests of judicial efficiency,
leaving district courts to manage a new collateral challenge while one
collateral challenge is pending. By contrast, Congress sought to pre-
vent the consideration of parallel petitions for collateral relief when
a state-convicted prisoner seeks federal habeas corpus relief,* and we
have recognized that the exhaustion and tolling provisions employed
in the section 2244(d)(2) circumstance serve not only the interests of
comity, but also the interests of judicial efficiency. See Yeats v. Ange-
lone, 166 F.3d 255, 261 (4th Cir. 1999). I am at a loss to explain why
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*See 28 U.S.C. § 2244(d)(2) ("The time during which a properly filed
application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.").
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Congress would not have similarly insured that, in the section 2255
context, (1) other collateral challenges were resolved before a section
2255 challenge, and (2) the time limitations under section 2255 were
tolled during the pendency of other collateral challenges.
I agree with Judge Traxler that district courts should consolidate
motions for collateral relief when possible. See ante at 5-6. In that
regard, another option for the district courts is the approach adopted
by the Seventh Circuit in O'Connor v. United States, 133 F.3d 548,
550 (7th Cir. 1998). There, the Seventh Circuit provided that when a
district court receives a motion for new trial, it must ask the prisoner
whether he intends to file a section 2255 motion. If the prisoner
intends to do so, the district court is to delay consideration of the Rule
33 motion until it has received the section 2255 petition, permitting
the district court to consider all of the collateral challenges at once.
This solution would also help to prevent default by prisoners: by ask-
ing whether the prisoner intends to file a section 2255 petition, the
district court indicates to the prisoner -- who, having pinned his
hopes on one collateral challenge, might not have realized that the
clock is ticking on his section 2255 challenge -- that he should pro-
ceed with the section 2255 petition. Id. at 551 ("Any other course
fractures the case into slivers, jeopardizes the defendant's opportunity
for one complete collateral attack, or both."). The approach of the
Seventh Circuit has obvious merit, and, among other things, it pro-
motes judicial efficiency by encouraging the resolution of collateral
challenges together.
Congressional drafting and applicable circuit precedent operate to
prevent relief for Prescott in this case, and for that reason I concur in
the opinion of my friend Judge Traxler. However, I would suggest
that Congress take note of these issues and undertake to remedy them.
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