No. 96-8310 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 MICHAEL J. MATTHEWS, PETITIONER v. UNITED STATES OF AMERICA ON THE PETITIONER FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General DANIEL S. GOODMAN Attorney Department of Justice Washington, D.C. 20530-0001 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether the amendment made by Section 102 of the Anti- Terrorism and Effective Death Penalty Act of 1996, requiring prisoners to obtain a certificate of appealability before they may appeal from a district court's denial of a motion under 28 U.S.C. 2255, applies to cases in which the motion was filed before the effective date of the Act, but the notice of appeal was filed after the Act. 2. Whether the court of appeals correctly denied a certificate of appealability to petitioner. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-8310 MICHAEL J. MATTHEWS, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The judgment order of the court of appeals (Pet. App. 1) is not reported. JURISDICTION The court of appeals entered its judgment on December 20, 1996. Pet. App. 1. The petition for a writ of certiorari was filed on March 20, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) . STATEMENT In November 1984, petitioner pleaded guilty in the United States District Court for the District of New Jersey to one count of extortion, in violation of the Hobbs Act, 18 U.S.C. 1951. Pet. ---------------------------------------- Page Break ---------------------------------------- 2 App. 4 -5, 25. On December 31, 1984, he was sentenced to 15 years' imprisonment. The court of appeals affirmed. United States v. Matthews, 773 F.2d 48 (3d Cir. 1985). On June 22, 1990, petitioner was released on parole. Pet. App. 5. On June 9, 1995, petitioner filed a motion to vacate his conviction and sentence under 28 U.S.C. 2255. The district court denied the motion on July 30, 1996. Pet. App. 2 -13. The court of appeals subsequently denied petitioners motion to proceed on appeal without a certificate of appealability, or, in the alternative, for issuance of certificate of appealability. Pet. App. 1. 1. Petitioner is the former Mayor of Atlantic City, New Jersey. Pet. App. 4. In exchange for $25,000, petitioner gave preferential treatment to an undercover FBI agent posing as a real estate development group in connection with the sale of Atlantic City property zoned for casino use. Pet. App. 4 - 5, 25; Matthews, 773 F.2d at 50. Four weeks into a jury trial, on November 27, 1984, petitioner agreed to plead guilty to one of eight counts charging him with violations of the Hobbs Act, 18 U.S.C. 1951, and the Travel Act, 18 U.S.C. 1952. Matthews, 773 F.2d at 50. The government, in turn, agreed to dismiss the remaining counts against petitioner. Ibid. Petitioner was sentenced to 15 years' imprisonment and ordered to pay a $10,000 fine. Pet. App . 25; Matthews, 773 F.2d at 50. On direct appeal, the judgment of the district court was affirmed. Matthews, 773 F.2d at 50-52. See Pet. App. 5, 25. ---------------------------------------- Page Break ---------------------------------------- 3 In October 1988, petitioner filed a first motion under 28 U.S.C. 2255, claiming that the United States had breached its plea agreement with petitioner and that his plea agreement was neither voluntary nor knowing. Pet. App. 5, 25. On January 12, 1989, the district court denied petitioner's motion. Ibid. 2. On June 22, 1990, petitioner was paroled from prison. Pet. App. 5. On June 9, 1995, less than two weeks before his parole term was due to expire, petitioner filed a second motion pursuant to 28 U.S.C. 2255. Pet. App. 5, 25. Petitioner claimed for the first time that the district court lacked jurisdiction over the count of the indictment to which he had pleaded guilty more than ten years earlier. Pet. App. 5-6. On June 21, 1995, while his motion was pending, petitioner was discharged from parole. Pet. App. 25. On July 30, 1996, the district court denied petitioner's motion for relief under Section 2255. Pet. App. 2-13. The court rejected petitioner's argument that the court lacked jurisdiction over the count of the indictment to which petitioner had pled guilty. Pet. App. 8-13. Petitioner alleged that the court lacked jurisdiction "because the government failed to show that [petitioner's] extortionate activity had an actual effect on interstate commerce." Pet. App. 8. The district court explained, however, that under United States v. Jannotti, 673 F.2d 578, 592-593 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106 (1982), "the Hobbs Act's interstate commerce requirement may be satisfied by indirect effects on commerce." Pet. App. 8. Based on ---------------------------------------- Page Break ---------------------------------------- 4 petitioner's admissions at the 1984 plea allocution, the court determined that "interstate commerce was affected, at least indirectly" by petitioner's extortionate conduct. Pet. App. 12. The court thus concluded that it had jurisdiction over the count of the indictment to which petitioner had pleaded guilty and therefore denied petitioner's Section 2255 motion. Pet. App. 13. 3. On April 24, 1996, while petitioner's motion was pending in the district court, the President signed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) , Pub. L. No. 104-132, 110 Stat. 1214, into law. Title I of the Act made changes to the law governing motions for collateral relief for federal prisoners under 28 U.S.C. 2255. The amendments made by Section 102 of the Act to 28 U.S.C. 2253 require a "certificate of appealability" before a prisoner may appeal from a district court's denial of his motion. The new provision states that "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from * * * the final order in a proceeding under section 2255." 110 Stat 1217 (to be codified at 28 U.S.C. 2253(c) (1) (B)). 1 4. On August 12, 1996, petitioner filed a notice of appeal from the denial of his Section 2255 motion. Pet. App. 26. By letter dated August 22, 1996, the clerk of the court of appeals ___________________(footnotes) 1 A certificate of appealability may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." AEDPA, 102, 110 Stat. 1217-1218 (to be codified at 28 U.S.C. 2253(c) (2)). The certificate must "indicate which specific issue or issues satisfy the showing required." Ibid. (to be codified at 28 U.S.C. 2253(c)(3)). ---------------------------------------- Page Break ---------------------------------------- 5 informed petitioner of the requirement that he obtain a certificate of appealability. Ibid. Petitioner then filed a "Motion to Proceed on Appeal Without Certificate of Appealability Or, in the Alternative, Motion for Issuance of Certificate of Appealability, " with a supporting memorandum. Pet. App. 14-22. In a judgment order filed on December 20, 1996, the court of appeals denied petitioner's motion. Pet. App. 1. ARGUMENT 1. a. Petitioner contends (Pet. 7-11) that the Act's new requirement that Section 2255 movants obtain a certificate of appealability before appealing the denial of a Section 2255 motion does not apply to him, because his Section 2255 motion was pending in the district court but not on appeal - - at the time the statute was enacted. That claim is without merit. In Landgraf v. USI Film Products, 511 U.S. 244 (1994) , this Court addressed the circumstances under which "a federal statute enacted after the events in a suit" may be applied to a pending case. Id. at 280. Under Landgraf, "the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach." Ibid. Where Congress issues a clear statement regarding the statute's applicability to pending cases, that statement controls. Ibid. "When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to ---------------------------------------- Page Break ---------------------------------------- 6 transactions already completed." Ibid. If a statute that lacks a clear statement would operate retroactively, it may not be applied retroactively. 2 Under the Landgraf analysis, however, procedural rules are generally not "retroactive," even if applied to lawsuits involving conduct that was completed before the rule was promulgated. 511 U.S. at 275. Because procedural rules regulate conduct in litigation, rather than primary conduct of the parties outside the litigation context, litigants have "diminished reliance interests in matters of procedure." Ibid. Thus , "the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive. " Ibid. For example, in Thorpe v. Housing Authority of Durham, 393 U.S. 268 (1969), this Court held that "an agency circular requiring a local housing authority to give notice of reasons and opportunity to respond before evicting a tenant was applicable to an eviction proceeding commenced before the regulation issued" because the new hearing procedures did not affect either party's primary conduct, that is, their "obligations under the lease agreement." Landgraf, 511 U.S. at 276. Similarly, in Bradley v. School Board of ___________________(footnotes) 2 "A statute does not operate `retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment." Landgraf, 511 U.S. at 269. "Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment." Id. at 269-270. That question may be answered by considering "the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event." Id. at 270. ---------------------------------------- Page Break ---------------------------------------- 7 Richmond, 416 U.S. 696 (1974), this Court held that the newly enacted Section 718 of the Education Amendments of 1972, which authorized federal courts to award reasonable attorney's fees to prevailing parties, would apply to a case pending on appeal because the attorney's fee determination was "collateral to the main cause of action" and "uniquely separable from the cause of action to be proved at trial." Landgraf, 511 U.S. at 276 - 277. 3 Section 102 of the AEDPA is a procedural change that does not violate any "vested right" under Landgraf. It does not define a new crime or otherwise change the significance of the prisoner's primary conduct. Nor does it change the constitutional standards governing the procedures used at the prisoner's trial and ___________________(footnotes) 3 As this Court warned in Landgraf, however, "the mere fact that a new rule is procedural does not mean that it applies to every pending case." 511 U.S. at 275 n.29. Because procedural rules regulate litigation conduct, it is the time of the litigation conduct, and not the time of the primary conduct underlying the litigation, that matters for purposes of retroactivity. Therefore, retroactivity analysis of procedural rules depends "on the posture of the particular case." Ibid. It is our position that 28 U.S.C. 2253(c) (1) (B) does not apply cases where the notice of appeal was perfected before the effective date of the Act. That position is in accord with the published decisions of the courts of appeals that have considered the issue. See United States v. Rocha, 109 F.3d 225, 228-229 (5th Cir. 1997) (concluding that the amended Section 2253(c) should not be applied. to a Section 2255 appeal filed before the Act's effective date); United States v. Lopez, 100 F.3d 113, 116-117 (l0th Cir. 1996) (same); United States v. Ruth 100 F.3d 111, 112 n.1 (10th Cir. 1996) (same); Herrera v. United States, 96 F.3d 1010, 1011-1012 (7th Cir. 1996) (same); Thye v. United States, 96 F.3d 635, 636-637 (2d Cir. 1996) (concluding that the amended Section 2253(c) should not be applied to a Section 2255 appeal filed and briefed before the Act's effective date) ; compare Naddi v. Hill, 106 F.3d 275, 277 (9th Cir. 1997) (per curiam) (concluding that the certificate-of-appealability requirement does not apply if a habeas corpus petition by a state prisoner is filed in district court before the effective date of the Act, even if the notice of appeal is filed after that date). See also Lozada v. United States, 107 F.3d 1011, 1014 n.2 (2d Cir. 1997) . ---------------------------------------- Page Break ---------------------------------------- 8 sentencing. Indeed, Section 102 does not even restrict the scope of relief available under Section 2255; it merely controls the availability of appellate review. Retroactivity analysis is thus controlled by the posture of the particular case at the time the legislation went into effect. The relevant event under Section 102 is the filing of a notice of appeal. The district court in this case denied collateral relief to petitioner on May 28, 1996 - - one month after the amended Section 2253 was signed into law. Petitioner filed her notice of appeal on June 11, 1996. Therefore, the posture of petitioner's case rendered her appeal from the district court's final order subject to the Act, even though her Section 2255 motion was filed before the effective date of the Act. See Lozada v. United States, 107 F.3d 1011, 1013-1014 (2d Cir. 1997) (applying certificate-of- appealability requirement where Section 2255 movant's notice of appeal was filed after the effective date of the Act); United States v. Riddick, 104 F.3d 1239, 1240-1241 (10th Cir. 1997) (same) ; United States V. Orozco, 103 F.3d 389, 391-392 (5th Cir. 1996) (same), cert. denied, No. 96-1443 (May 12, 1997) ; Hunter v. United States, 101 F.3d 1565, 1573 (11th Cir. 1996) (en banc) (same) , petition for cert. pending, No. 96-1443 (filed Mar. 10, 1997) ; see also United States v. Coyle, 944 F. Supp. 418, 419-420 (E.D. pa. 1996); United States v. Cota-Loaiza, 936 F. Supp. 756, 758-759 (D. Colo. 1996). 4 ___________________(footnotes) 4 This Court has denied certiorari in three cases in which courts of appeals applied the new certificate of appealability (continued . . . . ) ---------------------------------------- Page Break ---------------------------------------- 9 b. Petitioner argues (Pet. 8-10) that the courts of appeals differ in the manner in which they apply Section 102 to pending Section 2255 motions. In particular, petitioner cites Jeffries v. Wood, 103 F.3d 827 (9th Cir. 1996) (en banc order), which holds that the amendments made by Title I of the Act, including the certificate-of-appealability provisions at issue here, do not apply to "cases filed" before the Act's effective date. In Naddi v. Hill, 106 F.3d 275 (9the Cir. 1997) (per curiam), the Ninth Circuit relied on Jeffries to hold that the certificate-of-appealability requirement does not apply to an appeal by a state prisoner whose habeas corpus petition was filed in district court before the effective date of the Act, even though his notice of appeal was filed after that date. Thus, it appears that in cases involving state prisoners, the Ninth Circuit has departed from the majority rule. It is not yet clear whether the Ninth Circuit will extend that approach to cases involving federal prisoners proceeding under ___________________(footnotes) 4 (... continued) requirement to cases that were pending in the district court on the effective date of the Act, but in which a notice of appeal was not filed until after that date. See Durham v. United States, No. 96-7329 (May 12, 1997); England v. United States, No. 96-6826, cert. denied, 117 S. Ct. 969 (1997); Travis v. United States, No. 96-6585, cert. denied, 117 S. Ct. 968 (1997). One other case in that posture, Zarnes v. United States, No. 96-1324, is now pending before the Court. In Embrey v. United States, No. 96-7325, the prisoner's notice of appeal was filed before the effective date of the Act, but the court of appeals nonetheless applied the certificate of appealability requirement and dismissed the appeal. In our brief in Embrey, we stated our position that the court of appeals erred in that respect, but that the judgment did not warrant review. On May 19, 1997, the Court denied certiorari in Embrey. ---------------------------------------- Page Break ---------------------------------------- 10 Section 2255, and thereby establish a square conflict with the Third Circuit's decision in this case. 5 Even if a square conflict developed, however, it is not clear that the issue would warrant resolution by this Court. At present, the conflict would affect a defined set of Section 2255 cases - - i.e those that were pending in the district courts, but not on appeal , on the effective date of the Act. Even with respect to those cases, applying the certificate-of-appealability requirement will ordinarily, as here, have no effect on the outcome of cases involving constitutional claims. By denying petitioner a certificate-of-appealability, the court of appeals determined that he had not made even "a substantial showing of the denial of a constitutional right." AEDPA 102, 110 Stat. 1217-1218 (to be codified at U.S.C. 2253(c) (2)). Because it is easier to make that showing than it is to prevail on the merits of a constitutional ___________________(footnotes) 5 The other cases cited by petitioner clearly do not support his claim of a conflict in the circuits. For example, in United States v. Lopez, 100 F.3d 113 (l0th Cir. 1996) , and Thye v. United States, 96 F.3d 635 (2d Cir. 1996), the courts merely held that the certificate-of-appealability provisions do not apply if the notice of appeal was filed before the Act's effective date. Those decisions do not apply to cases, such as this one, in which the notice of appeal is filed after the Act's effective date. See United States v. Riddick, 104 F.3d at 1240-1241. In Boria v. Keane, 90 F.3d 36 (2d Cir. 1996) (per curiam), cert. pending, No. 96-628, the Second Circuit considered only the retroactivity of the new deference provisions of the Act, 28 U.S.C. 2254(d) , an issue which is now pending before this Court in Lindh v. Murphy, No. 96-6298 (argued Apr. 14, 1997). See discussion infra, pages-11-l3. The Second Circuit has adhered to the majority view that the certificate-of-appealability provisions apply to cases in which the notice of appeal is filed after the Act's effective date. Compare, 96 F.3d at 636-637, with Lozada, 107 F.3d at 1014 & n.2. ---------------------------------------- Page Break ---------------------------------------- 11 claim, the court of appeals' decision carries with it, a fortiori, a rejection of petitioner's claim on its merits. Cf. United States v. Rocha, 109 F.3d 225, 227 n.2 (5th Cir. 1997) ("[T]he showing for obtaining a [certificate of appealability] is lower than that required to prevail on the merits."). As petitioner therefore could not have succeeded on appeal in any event, further review in this case is not warranted. c. In Lindh v. Murphy, No. 96-6298 (argued April 14, 1997), the Court granted certiorari limited to the question whether amendments to 28 U.S.C. 2254(d) that were made by the Act apply to pending habeas cases. Those amendments establish new requirements before a court may grant habeas relief to state prisoners. This case need not be held pending the Court's decision in Lindh, because the outcome of Lindh is unlikely to affect the disposition of this case. The petitioner in Lindh presents two primary arguments in support of his claim that the new standards for state prisoner habeas relief do not apply to pending cases. The petitioner in Lindh argues that the Act itself provides that the amendments to the existing federal statutes governing collateral review of convictions should not apply to pending cases. The petitioner in Lindh also argues that even if the Act did not so provide, application of the Landgraf analysis to the Act's new standards for granting habeas relief to state prisoners leads to the conclusion that those new standards do no apply to pending cases. Even if ---------------------------------------- Page Break ---------------------------------------- 12 the Court were to accept one or both of those arguments in Lindh, however, the result in this case would remain unaffected. First, the petitioner in Lindh notes that Section 107(c) of the Act provides that "Chapter 154 of title 28, United States Code * * * shall apply to cases pending on or after the date of enactment of this Act." 110 Stat. 1226 (emphasis added). He argues that the Act's statement that its provisions codified in Chapter 154 of Title 28 "shall apply to cases pending" implies that its provisions codified in Chapter 153 of Title 28 should not apply to pending cases. Both the provision at issue in Lindh altering the bases for granting habeas relief for state prisoners and the provision at issue here requiring a certificate of appealability for federal prisoners are amendments to Chapter 153 of Title 28 and therefore, "under the Lindh petitioner's argument, would not apply to pending cases. See generally 95-6298 Pet. Br. 24-40. Even if the petitioner in Lindh is correct, that would not affect the analysis of this case. At most, the Lindh petitioner's argument regarding Section 107(c) of the Act would mean that Congress intended the certificate-of-appealability requirement, like the other amendments to provisions of Chapter 153, not to apply to "cases pending" on April 24, 1996. Because the certificate-of-appealability requirement imposes a condition on the filing of a case in the court of appeals, petitioners argument would therefore show at most that that requirement does not apply to "cases pending" in the court of appeals on April 24, 1996. This case was pending in the district court - - not in the court of ---------------------------------------- Page Break ---------------------------------------- 13 appeals - - on that date. Accordingly, this case would be unaffected by adoption of the Lindh petitioner's argument regarding Section 107(c). Indeed, if the Lindh petitioner's argument were accepted, it would draw precisely the same line that we propose regarding the application of the certificate-of-appealability requirement: that requirement would apply to cases filed in the court of appeals on or after April 24, 1996, but not to "cases pending" in the court of appeals before that date. Second, the petitioner in Lindh argues that even if the Act itself contained no section regarding the application of its various provisions to pending cases, analysis under Landgraf yields the conclusion that the new standards governing habeas relief for state prisoners do not apply to pending cases. See 96-6298 Pet. Br. 40-66. Acceptance of that argument, however, would also have no effect on this case. Unlike the provision at issue in Lindh, which alters the requirements for granting habeas relief to state prisoners, the certificate-of-appealability provision at issue in this case does not govern the circumstances under which a conviction may be collaterally attacked. Instead, the certificate- of-appealability provision governs the availability of a particular procedure - - appellate review - - to correct an error that a district court may have made in ruling on a Section 2255 motion. Therefore, regardless of the Court's conclusion about the proper treatment of the provision at issue in Lindh, the certificate-of- appealability requirement is clearly a new "procedural" rule under Landgraf and, as we argue above, it is applicable to cases that --------------------------------------- Page Break ---------------------------------------- 14 were already filed in the district court - - but not in the court of appeals - - on the effective date of the Act. 2. Petitioner asserts (Pet. 12) that the court of appeals erred in refusing to issue a certificate of appealability in his case. Although the petition includes papers filed in the district court that addressed that argument, see Pet. App. 8-13, 20-21, 31- 32, 49-50, the petition itself does not include any argument in support of that assertion. A certificate of appealability may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c) (2). The court of appeals correctly found that petitioner failed to make such a showing in this case. Pet. App. 1. See Jannotti, 673 F.2d at 592-593. In any event, further review would not be warranted to determine whether the court of appeals applied the applicable standard correctly to the particular facts of this case. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General DANIEL S. GOODMAN Attorney MAY 1997