Opinion
2:08-cr-00312
01-23-2020
UNITED STATES OF AMERICA v. HAROLD PRICE, Defendant.
MEMORANDUM OPINION
J. Nicholas Ranjan, United States District Judge
More than a decade ago, Harold Price pled guilty to possessing a gun "in furtherance of a drug trafficking crime." He was sentenced to 17 ½ years in prison. Now, Mr. Price moves under 28 U.S.C. § 2255 to vacate what remains of his sentence, arguing that the Supreme Court's decision in Johnson v. United States retroactively rendered that sentence invalid. After careful consideration, the Court does not agree.
While Mr. Price is correct that Johnson applies retroactively, that does not mean it applies to his case. In Johnson, and more recently in United States v. Davis, the Supreme Court invalidated certain parts of 18 U.S.C. § 924. See Johnson v. United States, 135 S. Ct. 2551 (2015); United States v. Davis, 139 S. Ct. 2319 (2019). Those were provisions that dealt with certain gun crimes and imposed harsh sentences on defendants with three or more "violent felony" convictions, or who committed a gun crime in connection with a separate "crime of violence."
More specifically, the Court in Johnson and Davis held that the statutory definitions of "violent felony" and "crime of violence" were, in part, unconstitutionally vague. At issue were the catch-all, residual clauses of those definitions. Each purported to include all crimes carrying a "substantial" or "serious potential" risk of harm. But what crimes fit that bill? The statute offered no clear answers. And after years of confusion in the courts, the Supreme Court determined that it could not square the residual clauses with the bedrock, due process principle that "a vague law is no law at all." Davis, 139 S. Ct. at 2323.
Yet, in this case, Mr. Price was not sentenced under any part of § 924 that the Supreme Court has declared invalid. The predicate for his sentence was a "drug trafficking crime," not a "violent felony" or "crime of violence." And the term "drug trafficking crime" is not similarly vague. In fact, the statute defines it with precision, citing the specific sections of the United States Code that contain qualifying offenses.
Under the standard applicable to "second or successive" habeas motions such as this, only a new rule of constitutional law, made retroactive by the Supreme Court, could allow this Court to vacate Mr. Price's sentence. Thus, because the Supreme Court has never declared § 924(c)(2)'s definition of a "drug trafficking crime" to be unconstitutional, let alone applied such a holding retroactively, the Court must deny Mr. Price's motion.
Having denied Mr. Price's motion, the Court will also deny the Government's separate "motion for summary action" as moot. In doing so, however, the Court clarifies that a "motion for summary action" is not a proper response to a § 2255 motion in district court, even if the Government believes the movant has waived the right to collaterally attack his sentence.
Finally, the Court determines that no certificate of appealability should issue. The effect of this decision is that Mr. Price's sentence remains intact.
FACTUAL BACKGROUND
I. Mr. Price pleads guilty to alternative charges.
On August 20, 2008, Mr. Price pled guilty to (1) possession with intent to distribute less than 50 kilograms of marijuana and (2) possession of a firearm "in furtherance of a drug trafficking crime." 21 U.S.C. §§ 841(a)(1) & (b)(1)(D); 18 U.S.C. § 924(c)(1)(A)(i); [ECF No. 1; No. 7; No. 9]. This plea resulted from a bargain in which the Government agreed to dismiss an earlier indictment—charging Mr. Price as a felon-in-possession under 18 U.S.C. §§ 922(g)(1) & 924(e)(1)—in exchange for his plea to the drug-related charges.
By pleading guilty to alternative charges, Mr. Price sought to avoid a 15-year mandatory minimum sentence that would have attached to a conviction under § 922(g). See 18 U.S.C. § 924(e)(1). In contrast, a conviction under the alternative, § 924(c) charge would carry a minimum mandatory sentence of only five years. As part of the deal, Mr. Price signed a plea agreement that included a broad waiver of his rights to appeal his sentence, either directly or by collateral attack. [ECF No. 7 at § A(10)]. The waiver language included only narrow exceptions.
In theory, the plea accomplished the goal of allowing the then-presiding judge, Terrence F. McVerry, greater discretion at sentencing. But on the point likely of most concern to Mr. Price—the length of his actual sentence—the agreement appeared to backfire. Following his guilty plea, the applicable sentencing guidelines designated Mr. Price as a "career offender" because of his criminal history. As a result, he faced a guideline sentencing range of 262-327 months. [ECF No. 17; No. 24]. This was instead of the guideline range of 188-235 months that he would have faced (with the same criminal record) if he had simply pled guilty to the original charge under § 922(g). [ECF No. 24 at ¶ 11]. In other words, while the plea agreement expanded the universe of statutorily permissible sentences, it also increased the maximum guideline sentence by over seven years.
This increase was apparently unanticipated. In presentence filings, defense counsel repeatedly sought a substantial downward variance, arguing that "a technical manipulation of the charges sought by defense counsel in order to achieve some discretion from the Court cannot be allowed to work such horrendous increase in punishment." [ECF No. 24 at ¶ 11]. Given the circumstances, Judge McVerry ultimately varied somewhat downward, sentencing Mr. Price to 114 months at Count 1 and 96 months at Count 2, with those sentences ordered to run consecutively. [ECF No. 28].
For Mr. Price, the result was a total prison sentence of 210 months, or 17 ½ years—a sentence higher than the original mandatory minimum he had sought to avoid, and in the middle of what would have been the guideline range if he had just pled guilty to the original charge without a plea agreement. II. Mr. Price does not file a direct appeal, and instead files a pro se § 2255 motion alleging ineffective assistance of counsel.
After sentencing, Mr. Price, through his counsel, requested an extension of time to file a notice of appeal. [ECF No. 29]. Judge McVerry granted the request, [ECF No. 30], but no direct appeal was ever filed by either Mr. Price or his counsel. Instead, before the time to direct appeal had even expired, Mr. Price filed a pro se motion to vacate his sentence. [ECF No. 31].
As required by United States v. Miller, 197 F.3d 644 (3d Cir. 1999), Judge McVerry advised Mr. Price that he could either (1) ask the Court to rule on his pro se motion as filed; (2) ask the Court to characterize his motion as a § 2255 habeas motion and rule on it as such, but lose the right to file any further § 2255 motions absent certification by the Third Circuit; or (3) withdraw the motion, and file one, all-inclusive § 2255 motion within the one- year statutory period. [ECF No. 32]. Mr. Price elected the third option—to withdraw his motion and file a § 2255 motion within one year. [ECF No. 33].
He did so on February 11, 2010. [ECF No. 36; No. 38]. In his renewed motion, Mr. Price argued that his counsel was ineffective for (1) inducing him to plead guilty to charges that "are neither true nor supported by the evidence" and (2) failing to file a notice of appeal from the sentence despite Mr. Price's requests. [ECF No. 36 at pp. 4-6; No. 38 at pp. 9]. Judge McVerry denied the motion on March 30, 2010. [ECF No. 42]. In an accompanying opinion, he reasoned that Mr. Price's counsel was not ineffective in failing to file a notice of appeal, even if Mr. Price had directed him to do so, because any appeal would have necessarily been barred by the waiver clause of his plea agreement. [Id. at pp. 20-26].
Under then-prevailing Third Circuit precedent, Judge McVerry was correct that counsel's alleged failure to file a notice of appeal did not constitute ineffective assistance under the circumstances. See United States v. Mabry, 536 F.3d 231, 240-41 (3d Cir. 2008). Incidentally, however, this is no longer the case after the Supreme Court's recent decision in Garza v. Idaho, 139 S. Ct. 738 (2019). There, the Court held that a lawyer's failure to file a notice of appeal when directed to do so is per se ineffective, "regardless of whether a defendant has signed an appeal waiver." Id. at 749-50.
At the present time, Garza does not provide Mr. Price with any relief. Should the Supreme Court in the future determine that Garza recognized a "new rule of constitutional law" and apply that rule retroactively, Mr. Price may have the ability to file a new § 2255 motion. See 28 U.S.C. § 2255(h); United States v. McGee, No. CR 5:16-095, 2019 WL 4248887, at *2 (E.D. Ky. Sept. 6, 2019) ("Garza did not announce a new rule of constitutional law and the Supreme Court did not expressly make it retroactive or demonstrate retroactivity through a combination of cases dictating that it is retroactive."); United States v. Gibson, No. CR 16-00746, 2019 WL 5213838, at *3 (D. Haw. Oct. 16, 2019) ("Garza applied a right previously recognized ... to a case where the defendant signed an appeal waiver."); but see Garza, 139 S. Ct. at 752 (Thomas, J. dissenting) ("The majority relies on Flores-Ortega to create its new rule[.]").
Mr. Price appealed from that order, but the Third Circuit denied his request for a certificate of appealability. Mr. Price then moved the Third Circuit for a rehearing en banc, which was also denied. Finally, Mr. Price petitioned the Supreme Court for certiorari. That petition was denied on January 9, 2012. III. Mr. Price's second § 2255 motion is also denied, but his third is certified by the Third Circuit in In re Matthews.
Three years passed after the denial of Mr. Price's first § 2255 motion. Then, on February 26, 2015, Mr. Price filed another, again raising ineffective assistance of counsel claims. [ECF No. 48]. Those claims were now bolstered by new Department of Justice guidance directing prosecutors "not to enforce counsel - ineffectiveness waivers in existing plea deal[s] when counsel rendered ineffective assistance resulting in prejudice or when the defendant's ineffective assistance claim raises a serious debatable issue that a court should resolve." [ECF No. 48 at p. 12-13]. But since Mr. Price had not first obtained certification from the Third Circuit to file a "second or successive" habeas motion, Judge McVerry dismissed the motion. [ECF No. 54].
One year later, on June 27, 2016, Mr. Price petitioned the Third Circuit for an order authorizing the Court to consider a third § 2255 motion. [ECF No. 56]; 28 U.S.C. § 2255(h). This time he argued that his conviction under § 924(c) was invalid after the Supreme Court's decision in Johnson.
After that, in August 2016, the Third Circuit decided In re Matthews, a consolidated case in which the court granted prisoners in five designated "lead" cases permission to file "second or successive" habeas motions challenging § 924(c) convictions based on Johnson and Davis. See In re Matthews, 934 F.3d 296 (3d Cir. 2019). In a footnote, the Third Circuit also certified en masse "approximately two hundred such applications that were stayed following consolidation of these five lead applications." Id. at 298 n. 2. Among them was Mr. Price's motion. [ECF No. 55].
In authorizing these motions to proceed in district court, the Third Circuit clarified that it was "not determin[ing] the merits" of the movants' challenges to § 924(c). Id. at 301. Rather, it held only that the movants had met the "light burden" of making a "sufficient showing of possible merit to warrant a fuller exploration by the district court." Id.
IV. The Third Circuit transfers Mr. Price's § 2255 motion to this Court, and the Government files a "motion for summary action."
Following In re Matthews, the Third Circuit transferred Mr. Price's current § 2255 motion to this Court. [ECF No. 56]. In his motion, Mr. Price explained that his claim was based on "[a] due process violation regarding [§ 924] based on a new rule of Constitutional Law ... not made retroactive until April 18, 2016." [Id. at p. 4]. More specifically, he stated: "I rely upon the Supreme Court's ruling in Johnson v. United States which was not made retroactive until April 18, 2016 in Welch v. United States." [Id. at p. 5].
In a supporting brief accompanying his motion, Mr. Price argued that "the language in [§] 924(c) is similar to the language in [§] 924(e) [that was found unconstitutional in Johnson] and thus, his due process has been violated." [Id. at Memo. p. 4]. For relief, he asked that his "[pre-sentence report] be corrected, his sentence vacated, and that he be resentenced to a guideline range of 77 to 96 months." [Id. at Memo. p. 6]. He also requested that the Court appoint counsel to represent him. [Id. at Memo. pp. 5-6].
On September 30, 2019, the Government filed a "motion for summary action" instead of a response to Mr. Price's motion. [ECF No. 59]. In its motion, the Government argued that (1) the appeal waiver in Mr. Price's plea agreement bars his motion; (2) collateral estoppel prevents this Court from holding otherwise (in light of Judge McVerry's prior opinion); and (3) Johnson does not impact Mr. Price's conviction under § 924(c), because his predicate crime was a "drug trafficking crime," rather than a "crime of violence" or "violent felony." [Id.].
STANDARD OF REVIEW
28 U.S.C. § 2255 provides that a prisoner may collaterally attack a sentence "imposed in violation of the Constitution or laws of the United States." But he usually can do so only once. After that, there are "stringent procedural and substantive requirements that an applicant must satisfy in order to file a second or successive § 2255 motion with a district court." Mendoza v. United States, No. 06-cr-167, 2017 WL 1293575, at *2 (W.D. Pa. Apr. 6, 2017).
Most notably, a "second or successive" § 2255 motion may not proceed unless it is based on either (1) "newly discovered evidence" establishing the defendant's innocence; or (2) a "new rule of constitutional law," previously unavailable, that the Supreme Court has made retroactive on collateral review. 28 U.S.C. § 2255(h). Only if the claims raised fall into one of these two, narrow categories can the Court go on to consider the merits—i.e., whether the "new rule of constitutional law" or "newly discovered evidence" entitles the movant to relief.
These threshold requirements are not often satisfied. But when they are, the Court must hold an evidentiary hearing on the motion "unless the filings and record of the case conclusively demonstrate that the petitioner is not entitled to relief." Warren v. United States, No. 13-cr-270, 2019 WL 4010559, at *2 (W.D. Pa. Aug. 26, 2019). If clarity is lacking, the refusal to hold an evidentiary hearing is an abuse of discretion. United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005).
In determining whether to hold a hearing, the Court "must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." Id. at 545. Because Mr. Price is proceeding pro se, the Court will also construe his filings liberally. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).
DISCUSSION & ANALYSIS
I. The Court denies Mr. Price's motion to vacate his sentence.
Mr. Price's motion to vacate his sentence boils down to a single question: Does the Supreme Court's decision in Johnson invalidate a conviction and sentence for possessing a gun "in furtherance of a drug trafficking crime" under 18 U.S.C. § 924(c)?
Much of the procedural brush that might bar the Court from reaching this question has already been cleared. The Third Circuit has certified Mr. Price's § 2255 motion to proceed in district court. [ECF No. 56]; 28 U.S.C. § 2255(h). His motion was filed within the applicable statute of limitations. 28 U.S.C. § 2255(f)(3). And Johnson established a new rule of constitutional law that applies retroactively on collateral review. See Welch v. United States, 136 S. Ct. 1257, 1268 (2016). The Court will thus go on to consider Mr. Price's motion on its merits.
Because resolution of Mr. Price's motion on the merits is straightforward and efficient, the Court will not consider the Government's arguments on collateral estoppel or the enforceability of Mr. Price's appeal waiver. See O'Connor v. United States, 133 F.3d 548, 551 (7th Cir. 1998) (recognizing the "strong preference for swift and conclusive resolution of collateral attacks.").
A. Mr. Price's conviction under § 924(c) was not based on the statutory language invalidated in Johnson.
Mr. Price argues that his sentence must be vacated because the language of § 924(c) is "similar to" the language of § 924(e) that was declared unconstitutional in Johnson. The Court disagrees.
At issue in Johnson was a sentencing enhancement that applied to some felon-in-possession convictions under § 922(g). The enhancement, § 924(e)(1), increased the statutory prison term for § 922(g) convictions to a minimum of 15 years, and a maximum of life, if the defendant had three or more prior convictions for a "violent felony." The term "violent felony" was defined, in part, to include any felony that "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). In Johnson, the Supreme Court considered whether "this part of the definition of a violent felony survives the Constitution's prohibition of vague criminal laws." Johnson, 135 S. Ct. at 2555.
The Court held that it did not. It explained that by tying a "judicial assessment of risk" to a "judicially imagined 'ordinary case' of a crime," all while leaving "uncertainty about how much risk it takes for a crime to qualify," the residual clause of § 924(e)(2)(B) made determining whether certain crimes qualified as "violent felonies" a task "which at best could be only guesswork." Johnson, 135 S. Ct. at 2557-58, 2560. Lamenting "[n]ine years' experience trying to derive meaning from the residual clause," the Court declared that "[i]nvoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution's guarantee of due process." Id. at 2560.
Four years later, in United States v. Davis, the Supreme Court applied and extended Johnson's holding to invalidate part of a similar residual clause in § 924(c). See United States v. Davis, 139 S. Ct. 2319 (2019). § 924(c) is a provision that makes it a crime to carry a firearm "during or in relation to," or to possess a firearm "in furtherance of," any "crime of violence or drug trafficking crime." 18 U.S.C. § 924(c)(1)(A).
In Davis, the Supreme Court considered the constitutionality of the residual clause in § 924(c)'s definition of "crime of violence." Much like the residual clause in Johnson, that clause defined a "crime of violence" to include any felony that "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 924(c)(3)(B). And as in Johnson, the Court determined that this "substantial risk" inquiry provided "no reliable way to determine which offenses qualify as crimes of violence." Davis, 139 S. Ct. at 2324. Thus, it held that this clause, too, was "unconstitutionally vague." Id.
All of which brings us to this case. It is true that, after Johnson and Davis, a conviction or sentence based on the residual clauses of §§ 924(e)(2)(B) & (c)(3)(B) can no longer be sustained. But Mr. Price's sentence was not enhanced based on "violent felony" convictions. 18 U.S.C. § 924(e)(2)(B). Nor was he convicted of possessing a gun in connection with a "crime of violence." 18 U.S.C. § 924(c)(3). Instead, his predicate offense was a "drug trafficking crime" under § 924(c)(2), which the indictment identifies as "possession with the intent to distribute less than fifty (50) kilograms of [marijuana]" in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(D). [ECF No. 1].
This distinction is fatal to Mr. Price's claim. Simply put, the Supreme Court did not address the constitutionality of § 924(c)(2)'s definition of "drug trafficking crime" in Johnson, Davis, or any other case. Nor are Johnson and Davis potentially applicable here by analogy.
The relevant provision of the statute, § 924(c)(2), defines a "drug trafficking crime" solely as "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq), or chapter 705 of title 46." This definition is not at all like the definitions of "violent felony" and "crime of violence" at issue in Johnson and Davis. Unlike those definitions, whether a crime is a "drug trafficking crime" under § 924(c)(2) does not depend on any speculative "estimation of the degree of risk posed by a crime's imagined 'ordinary case.'" Davis, 139 S. Ct. at 2326. In fact, the definition of a "drug trafficking crime" does not have any catch-all or residual clause at all.
That this definition is not vague becomes clear from applying it. Indeed, to determine whether an offense is a "drug trafficking crime," the Court need only consult the cited sections of the United States Code. For example, in Mr. Price's case, the analysis begins and ends with observing that his predicate crime was a violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(D). This is a felony "punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)," and thus a "drug trafficking crime" under § 924(c)(2). Short of separately enumerating every qualifying offense, it is hard to say how a statute could define a term more precisely.
This Court is not alone in reaching that conclusion. Faced with the same question, other district courts have also held that Johnson and Davis do not invalidate convictions or sentences under § 924(c) if they are related to a "drug trafficking crime," rather than a "crime of violence." See, e.g. Cole v. United States, 409 F. Supp. 3d 1299, 1311 (N.D. Ala. 2019) ("These cases did not address the definition of a drug-trafficking offense ... As a result, these cases provide Cole no ground for relief from his § 924(c) conviction."); United States v. Phillips, No. 17-10128, 2019 WL 4305077, at *3 (D. Kan. Sept. 11, 2019) ("In this case, Phillips was convicted of carrying of a firearm during and in relation to a drug trafficking crime. The Davis decision only invalidates the residual clause of the 'crime of violence' definition. It does not invalidate that portion of § 924(c)(1)(A) addressing 'drug trafficking crime[s].'"); United States v. Boyce, No. CR 3:12-897, 2019 WL 4016193, at *2 (D.S.C. Aug. 26, 2019) ("The court finds Defendant's § 924(c) conviction remains valid because it was also predicated on drug trafficking crimes.").
In fact, Johnson and Davis do not even invalidate all § 924 convictions or sentences that do rely on the definitions of "violent felony" or "crime of violence." Rather, the so-called "elements" clause of each definition—which include any crime that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another"—remains valid. See United States v. Kennedy, 720 F. App'x 104, 110 (3d Cir. 2017) ("We hold a conviction for Hobbs Act robbery ... is a crime of violence under the elements clause, and therefore do not need to reach Kennedy's residual clause argument."); Haynes v. United States, 936 F.3d 683, 694 (7th Cir. 2019) (affirming conviction under the "still-valid elements clauses of the definitions in § 924(c)(3)(A) and § 16(a)."); United States v. Barrett, 937 F.3d 126, 128 (2d Cir. 2019) ("The predicate offense for each of these crimes ... can be identified as a crime of violence under § 924(c)(3)(A) applying the traditional, elements only, categorical approach not at issue in Davis."); Otero v. United States, No. CV 16-3927, 2019 WL 5884615, at *5 (D.N.J. Nov. 12, 2019) (noting that "the force or elements clause" of § 924(c) "survived Davis.").
For these reasons, Johnson and Davis do not impact Mr. Price's conviction and sentence for violating § 924(c). And because the Supreme Court has not otherwise declared § 924(c)(2)'s definition of a "drug trafficking crime" to be unconstitutionally vague, let alone applied such a holding retroactively, the Court will deny Mr. Price's motion to vacate his sentence.
Finally, the Court finds that no evidentiary hearing is required before reaching this result. Mr. Price's motion turns on a pure question of law and the record is not "inconclusive as to whether [he] is entitled to relief." United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005). To the contrary, the law and facts here are clear and conclusive; Johnson and Davis simply do not apply to Mr. Price's conviction based on completely different statutory language.
B. Mr. Price is not entitled to counsel, and the Court declines to appoint counsel under the circumstances.
In his motion, Mr. Price also requests that the Court appoint counsel to represent him. [ECF No. 56 at Memo. pp. 5-6]. The Court declines to do so.
"The Sixth Amendment right to counsel does not attach beyond a defendant's first appeal as of right in a non-capital case." Warren, 2019 WL 4010559, at *9. Thus, "there is no right to appointed counsel in a federal habeas corpus case." Id. That said, the Court "may," in its discretion, "appoint an attorney to assist a financially eligible § 2255 petitioner when the Court determines that the interests of justice so require' such an appointment." Id. (internals omitted). Before doing so, however, the Court must "examine the petitioner's claims" to determine whether they have "arguable merit in fact and law." Id. (internals omitted).
For all the reasons discussed above, the Court finds that Mr. Price's claims do not have "arguable merit in fact and law" and thus declines to appoint counsel.
C. No certificate of appealability should issue.
"When a district court issues a final order denying a § 2255 motion, the court must also determine whether a certificate of appealability ... should issue." United States v. Davies, No. 07-cr-436, 2019 WL 6254988, at *2 (W.D. Pa. Nov. 22, 2019). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
"Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, the Court finds that "reasonable jurists" would not find its decision, derived from a straightforward application of Johnson and Davis, to be "debatable or wrong." Thus, no certificate of appealability should issue.
II. The Court denies the Government's motion for summary action.
Also pending is the Government's "motion for summary action," which it filed instead of a direct response to Mr. Price's § 2255 motion. [ECF No. 59]. In its filing, the Government asks the Court to "take summary action" and "dismiss" Mr. Price's petition based on the "collateral attack waiver" in his plea agreement. [Id. at p. 9].
Having denied Mr. Price's § 2255 motion on other grounds, the Court will deny the Government's motion as moot. The Court sees no meaningful difference between "denying" Mr. Price's motion and "taking summary action" to "dismiss" it.
That said, the Court also notes that a "motion for summary action" is not a procedurally appropriate response to a § 2255 petition in district court. In styling its motion as such, the Government partially quotes from Third Circuit decisions stating that "the government should seek enforcement of [an appeal] waiver before there has been briefing on the merits." United States v. Fekos, 318 F. App'x 122, 125 n. 3 (3d Cir. 2009); United States v. Goodson, 544 F.3d 529, 534 n. 2 (3d Cir. 2008) (To "obtain the full benefit of its bargain ... the government may file a motion for summary action ... to enforce the waiver and to dismiss the appeal.").
The complete quotations provide:
...[I]n light of the amendment to the Third Circuit Local Appellate Rule 27.4 and Third Circuit Internal Operating Procedure 10.6 , we reiterate that in the future the government should seek enforcement of such a waiver before there has been briefing on the merits.Fekos, 318 F. App'x at 125 n. 3 (emphasis added).
To obtain the full benefit of its bargain, we emphasize that the government may file a motion for summary action under Third Circuit L.A.R. 27.4 to enforce the waiver and to dismiss the appeal.Goodson, 544 F.3d 529, 535 n. 2 (emphasis added).
Indeed, as it turns out, a "motion for summary action" is a unique creature of the Third Circuit's local appellate rules. As explained in Goodson, the purpose of such motions is to allow a special "motions panel" of that court to rule quickly on the enforceability of an appeal waiver, avoiding the need to litigate a full appeal. See id. ("A motions panel will then rule on the enforceability of the waiver. This approach is beneficial to the government because briefing at this stage is limited to the validity and scope of the waiver.").
No similar device exists under the local rules of this Court. What's more, in district court, there is really no reason for it. If a valid appeal waiver is present, the Government can raise waiver in its response to the § 2255 petition. Whether styled as a "motion for summary action" or a "brief in response," the result is the same—the Government files one brief and the district court issues one order granting or denying relief.
In fact, it is the Government's filing of a separate motion that needlessly complicates matters, as the Court must then provide the defendant, who will be imprisoned and likely proceeding pro se, a chance to respond to the Government's new—and, for a pro se litigant, procedurally confusing—motion. C.f. Raineri v. United States, 233 F.3d 96, 97 (1st Cir. 2000) ("The federal courts historically have been solicitous of the rights of pro se litigants."); Gonzalez-Liranza v. Naranjo, 211 F.3d 1278 (10th Cir. 2000) ("The rights of pro se litigants require careful protection where highly technical requirements are involved[.]").
Thus, while it does not affect the outcome here, for the sake of clarity in future cases, when a § 2255 motion is properly before a district court, the Government should respond to the filing in the same manner that it would respond to any other.
CONCLUSION
For the reasons discussed above, the Court will deny Mr. Price's § 2255 motion to vacate his sentence, [ECF No. 56], and deny as moot the Government's motion for summary action. [ECF No. 59]. No certificate of appealability will issue. A corresponding order follows. DATED this 23rd day of January, 2020.
BY THE COURT:
/s/ J. Nicholas Ranjan
United States District Judge